B-184284, SEP 26, 1975

B-184284, SEP 26, 1975

AMBIGUITY OF IFB PROVISION GOVERNING WHEN BUILDINGS TO BE RENOVATED WOULD BE MADE AVAILABLE TO CONTRACTOR JUSTIFIED CANCELLATION OF IFB AND READVERTISEMENT.

SANTA FE ENGINEERS, INC.:

INVITATION FOR BIDS (IFB) NO. DACA21-75-B-0009, ISSUED BY THE ARMY ENGINEER DISTRICT, SAVANNAH, GEORGIA, FOR BARRACKS MODERNIZATION AT FORT BRAGG, NORTH CAROLINA, WAS CANCELED PURSUANT TO SECTION 2-404.1(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) BASED ON THE CONTRACTING OFFICER'S WRITTEN DETERMINATION THAT THE SPECIFICATIONS WERE AMBIGUOUS.

SANTA FE ENGINEERS, INC. (SANTA FE) PROTESTS THE CANCELLATION OF THE IFB ON THE GROUND THAT THE ALLEGED AMBIGUITIES DO NOT CONSTITUTE COGENT OR COMPELLING REASONS TO JUSTIFY CANCELLATION AND READVERTISEMENT AFTER BIDS HAVE BEEN DISCLOSED.

THE CORPS OF ENGINEERS HAS ADVANCED SEVERAL REASONS IN SUPPORT OF ITS DECISION TO CANCEL THE IFB AND READVERTISE THE PROJECT. WE WILL LIMIT OUR DISCUSSION TO THE ONE REASON WHICH IN OUR OPINION JUSTIFIES THE ADMINISTRATIVE ACTION TAKEN.

THE SEVENTEEN BUILDINGS TO BE MODERNIZED WERE DIVIDED INTO FOUR GROUPS CONSISTING OF THREE GROUPS OF BARRACKS AND A FOURTH GROUP CONTAINING QUARTERMASTER TYPE BUILDINGS AND THE MEDICAL BARRACKS BUILDING AT A HOSPITAL. SECTION 1A-02 OF THE SPECIFICATIONS, ENTITLED "COMMENCEMENT, PROSECUTION AND COMPLETION OF WORK", PROVIDED THAT THE FIRST, SECOND AND THIRD GROUPS, AND "ALL OTHER WORK" SHOULD BE COMPLETED, RESPECTIVELY, NO LATER THAN 390, 620, 840 AND 1,080 CALENDAR DAYS AFTER RECEIPT OF THE NOTICE OF PROCEED. IT WOULD APPEAR FROM THIS PROVISION THAT THE CONTRACTOR WOULD BE PERMITTED TO COMPLETE THE WORK ON EACH GROUP SEQUENTIALLY.

SECTION 1A-22, "PHASING OF WORK", ESTABLISHED THE ORDER IN WHICH THE BUILDINGS WERE TO BE TURNED OVER TO THE CONTRACTOR FOR RENOVATION. BELIEVE IT IS CLEAR WITH RESPECT TO THE FIRST THREE GROUPS OF BARRACKS BUILDINGS, THAT IT WAS INTENDED THAT THE WORK BE SEQUENTIAL.

SECTION 1A-22 PROVIDED THAT FOLLOWING THE COMPLETION OF EACH OF THE FOUR BUILDINGS IN THE FIRST GROUP, ADDITIONAL BUILDINGS IN THE SECOND AND THIRD GROUPS WOULD BE MADE AVAILABLE ON A ONE-FOR-ONE BASIS AS THEIR OCCUPANTS MOVED INTO THE MODERNIZED BUILDINGS.

WITH RESPECT TO THE FOURTH GROUP OF SIX BUILDINGS, SECTION 1A-22 F. STATED:

"THE BALANCE OF THE BUILDINGS IN THIS PROJECT, WHICH ARE QUARTERMASTER TYPE BUILDINGS AND THE MEDICAL BARRACKS BUILDING AT A HOSPITAL, COULD BE MADE AVAILABLE ALL AT ONE TIME TO THE CONTRACTOR. ***"

HOWEVER, IT WAS NOT EXPLICITLY STATED WHETHER THE GROUP FOUR BUILDINGS COULD BE WORKED UPON SIMULTANEOUSLY WITH THE GROUP ONE, TWO AND THREE BUILDINGS, OR WHETHER ALL OF THE FIRST THREE GROUPS MUST BE COMPLETED BEFORE WORK ON GROUP FOUR COULD COMMENCE (WHICH WAS THE INTENDED MEANING OF THE PROVISION). IT IS THIS CIRCUMSTANCE, WE BELIEVE, WHICH PROVIDES A COGENT AND COMPELLING REASON FOR THE CANCELLATION OF THE IFB AND READVERTISEMENT OF THE WORK.

SANTA FE CONTENDS THAT THE "PHASING OF WORK" PROVISION IS NOT AMBIGUOUS AND DID NOT PREJUDICE ANY BIDDER. HOWEVER, THE RECORD SHOWS THAT ONE OF THE BIDDERS, CASTLE CONSTRUCTION COMPANY, INC., TELEPHONED THE PROCURING ACTIVITY PRIOR TO BID OPENING TO OBTAIN A CLARIFICATION OF THE PROVISION. APPARENTLY, CASTLE'S INQUIRY DID NOT COME TO THE CONTRACTING OFFICER'S ATTENTION PRIOR TO BID OPENING BECAUSE THE CALL WAS MADE VERY SHORTLY BEFORE BIDS WERE OPENED AND WAS TO A GOVERNMENT EMPLOYEE WHO WAS NOT IDENTIFIED IN THE IFB AS A SOURCE OF INFORMATION.

MORE IMPORTANTLY, THE LOW BIDDER, T&B BUILDERS, INC. (T&B) HAS ALLEGED THAT IT WAS IN FACT PREJUDICED BY THE AMBIGUITY. WE HAVE BEEN ADVISED BY THE CORPS OF ENGINEERS THAT IN THE COURSE OF CONSIDERING A MISTAKE IN BID ALLEGED BY T&B, IT BECAME APPARENT THAT T&B HAD COMPUTED ITS BID ON THE BASIS OF WORKING ON ALL OF THE GROUP FOUR BUILDINGS SIMULTANEOUSLY WITH THE BUILDINGS IN THE FIRST THREE GROUPS. T&B ALLEGES THAT ITS OVERHEAD COSTS WOULD ESCALATE DRAMATICALLY IF ITS UNDERSTANDING OF THE IFB WERE INCORRECT AND IF IT WERE TO PERFORM THE WORK SEQUENTIALLY OVER A LONGER PERIOD OF TIME.

FROM OUR REVIEW OF THE RECORD, WE CONCLUDE THAT THE "PHASING OF WORK" PROVISION WAS AMBIGUOUS AND PROVED CONFUSING TO BIDDERS.

ACCORDINGLY, WE FIND NO BASIS TO OBJECT TO THE AGENCY'S DETERMINATION TO CANCEL THE IFB AND RESOLICIT BIDS UNDER AN INVITATION WHICH PROVIDES ACCURATE INFORMATION TO BIDDERS. SANTA FE'S PROTEST IS THEREFORE DENIED.