B-211879.2, AUG 8, 1983

B-211879.2, AUG 8, 1983

DIGEST: 1. APPARENT MISTAKE IN BID ON ALTERNATE DEDUCTIVE ITEMS DOES NOT PROVIDE SUFFICIENT BASIS TO REJECT THE BID FOR THE BASIC ITEM, WHICH OFFERS TO PERFORM THE ENTIRE PROJECT CALLED FOR UNDER A SOLICITATION PROVIDING FOR AWARD OF THE BASIC ITEM IF FUNDS ARE AVAILABLE AND IT IS DETERMINED THAT THE FUNDS ARE AVAILABLE. 2. WHERE IT IS CLEAR FROM A PROTESTER'S INITIAL SUBMISSION THAT THE PROTEST INVOLVES MATTERS WHICH GAO DOES NOT CONSIDER, GAO WILL DISMISS PROTEST WITHOUT REQUESTING AN AGENCY REPORT OR HOLDING A CONFERENCE WHICH WOULD SERVE NO USEFUL PURPOSE.

ZIMMERMAN PLUMBING AND HEATING CO., INC. - RECONSIDERATION:

ZIMMERMAN PLUMBING AND HEATING CO., INC. (ZIMMERMAN), REQUESTS RECONSIDERATION OF OUR DECISION IN ZIMMERMAN PLUMBING AND HEATING COMPANY, INC., B-211879, JUNE 24, 1983, 83-2 CPD 16, IN WHICH WE DISMISSED ZIMMERMAN'S PROTEST UNDER A SOLICITATION ISSUED BY THE VETERANS ADMINISTRATION (VA) FOR THE BATTLE CREEK MICHIGAN MEDICAL CENTER REMODELING PROJECT NO. 515-811360. IN THAT DECISION, WE FOUND THAT ZIMMERMAN'S PROTEST WAS NOT FOR CONSIDERATION ON THE MERITS BECAUSE ITS ALLEGATION THAT THE LOW BIDDER HAD SUBMITTED A BELOW-COST BID UNDER CERTAIN ITEMS DID NOT CONSTITUTE A LEGAL BASIS FOR PRECLUDING AWARD, AND ZIMMERMAN'S ALLEGATION THAT THE BID WAS MISTAKEN WAS UNSUBSTANTIATED, AND, IN ANY EVENT, THAT IF THE BID APPEARED SO UNREASONABLY LOW AS TO SUGGEST ERROR, THE CONTRACTING OFFICER WOULD BE OBLIGATED TO SEEK APPROPRIATE VERIFICATION PRIOR TO MAKING AWARD.

IN ITS REQUEST FOR RECONSIDERATION, ZIMMERMAN ASSERTS THAT THERE IS NO EVIDENCE THAT THE LOW BIDDER DID NOT MAKE A MISTAKE IN ITS BID AND FURTHER CONTENDS THAT IF NO MISTAKE IS CLAIMED, THE VA SHOULD MAKE AN AWARD TO THE LOW BIDDER FOR ONE OF THE ALTERNATE DEDUCTIVE ITEMS, ON WHICH ITS BID WAS EXTREMELY LOW, AND RESOLICIT FOR THE WORK DEDUCTED UNDER THAT ITEM. FIND THE REQUEST FOR RECONSIDERATION WITHOUT MERIT.

THE SOLICITATION CALLED FOR A BASIC BID UNDER ITEM I FOR THE ENTIRE REMODELING PROJECT. IT ALSO CALLED FOR BIDS FOR DEDUCTIVE ITEMS II AND III, WITH ITEM II CALLING FOR A PRICE FOR THE PROJECT DELETING WORK PERTAINING TO THE CHIMNEY, AND ITEM III FURTHER DELETING WORK RELATING TO REMOVAL AND REPLACEMENT OF CERTAIN INSULATION. THE SOLICITATION PROVIDED THAT:

"A SINGLE AWARD WILL BE MADE ON ITEM I, BUT IN THE EVENT THE OFFER EXCEEDS THE FUNDS AVAILABLE, A SINGLE AWARD WILL BE MADE ON ITEM II, OR IN THE EVENT THE OFFER ON ITEM II EXCEEDS THE FUNDS AVAILABLE, AWARD WILL BE MADE ON ITEM III, OFFERORS SHOULD QUOTE A PRICE ON EACH ITEM LISTED."

ZIMMERMAN BID $538,800 UNDER ITEM I, $527,800 UNDER ITEM II, AND $478,800 UNDER ITEM III. HUNTER-PRELL COMPANY (HUNTER) BID $489,900 UNDER ITEM I, $9,833 UNDER ITEM II, AND $103,000 UNDER ITEM III. THE VA HAS ADVISED OUR OFFICE THAT IT HAS DETERMINED THAT IT HAS SUFFICIENT FUNDS AVAILABLE FOR AWARD TO HUNTER UNDER ITEM I, AND THAT IT PROPOSES TO AWARD TO HUNTER UNDER ITEM I.

WE AGREE WITH ZIMMERMAN THAT HUNTER'S BID UNDER ITEMS II AND III IS MISTAKEN. HUNTER OBVIOUSLY BID THE AMOUNT TO BE DEDUCTED UNDER ITEMS II AND III, RATHER THAN THE PRICE FOR THE WORK TO BE PERFORMED UNDER THESE DEDUCTIVE ITEMS, AS WAS REQUESTED BY THE SOLICITATION. HOWEVER, THE BID IS TO BE EVALUATED ONLY BASED UPON THE WORK ACTUALLY AWARDED. CASTLE CONSTRUCTION COMPANY, INC., B-197466, JULY 7, 1980, 80-2 CPD 14.

THEREFORE, ASSUMING THAT HUNTER'S BID UNDER ITEMS II AND III WAS MISTAKEN, THIS DOES NOT SUPPORT ZIMMERMAN'S CONTENTION THAT THE DEFICIENCY PREVENTED VA FROM DETERMINING THE LOWEST OVERALL COST UNDER ITEM I, SINCE THE VA DID NOT ACCEPT ANY OF THE DEDUCTIVE ITEMS AND HUNTER'S BID FOR ITEM I IS LOW. CASTLE CONSTRUCTION COMPANY, INC., SUPRA. MOREOVER, EVEN WHERE A BIDDER HAS FAILED TO BID ON AN ALTERNATE DEDUCTIVE ITEM, WE HAVE HELD THAT THERE IS NO PREJUDICE TO THE GOVERNMENT'S INTERESTS, NOR ANY UNFAIR ADVANTAGE OVER OTHER BIDDERS, AND THE BID MAY BE ACCEPTED, IF AWARD IS MADE FOR THE BASIC ITEM. THE BIDDER MERELY RUNS THE RISK THAT ITS BID WILL BE ELIMINATED FROM CONSIDERATION IF THE GOVERNMENT ELECTS TO ACCEPT THE ALTERNATE DEDUCTIVE ITEMS. 51 COMP.GEN. 792 (1972); EDSALL CONSTRUCTION COMPANY, B-190722, MARCH 29, 1978, 78-1 CPD 242.

ZIMMERMAN ALSO COMPLAINS THAT IT REQUESTED A CONFERENCE WHICH IT WAS NOT GRANTED, AND THAT OUR OFFICE DID NOT OBTAIN A REPORT FROM THE VA. NO USEFUL PURPOSE IS SERVED BY HOLDING A CONFERENCE OR REQUIRING AN AGENCY TO SUBMIT A REPORT WHEN IT IS CLEAR FROM THE PROTESTER'S SUBMISSION THAT THE PROTEST INVOLVES A MATTER WHICH WE DO NOT CONSIDER. CONSEQUENTLY, IT HAS BEEN OUR PRACTICE TO DISMISS SUCH PROTESTS WITHOUT FIRST SEEKING A REPORT OR PROVIDING AN OPPORTUNITY FOR A CONFERENCE. GAVLON INDUSTRIES, INC., B-199584.2, SEPTEMBER 5, 1980, 82-1 CPD 402.