B-164141, JUN. 13, 1968

B-164141, JUN. 13, 1968

TO A. A. BEIRO CONSTRUCTION COMPANY, INC.:

WE REFER TO YOUR LETTER DATED APRIL 22, 1968, ADDRESSED TO CONGRESSMAN JOEL T. BROYHILL AND REFERRED BY HIM TO OUR OFFICE, COMPLAINING OF THE PRACTICE BY THE DEPARTMENT OF THE ARMY OF ADVERTISING MORE THAN ONE CONSTRUCTION PROJECT AT THE SAME LOCATION UNDER A SINGLE INVITATION FOR BIDS (IFB). YOU SPECIFICALLY REFER TO TWO IFB'S ISSUED BY THE NORFOLK DISTRICT, CORPS OF ENGINEERS, NORFOLK, VIRGINIA, FOR CONSTRUCTION WORK AT FORT BELVOIR, VIRGINIA. ONE IFB IS IDENTIFIED AS NO. DACA65-68-B-0020, DATED MARCH 27, 1968, AND THE OTHER IFB IS SAID TO HAVE AN OPENING DATE OF MAY 9.

YOU CONTEND THAT SUCH PRACTICE EFFECTIVELY ELIMINATES SMALLER CONTRACTORS FROM TOTAL COMPETITION; THAT IT WOULD BE ALMOST PHYSICALLY IMPOSSIBLE FOR A CONTRACTOR OF YOUR SIZE, WHO HAS THE CAPACITY TO BID ONE BUT NOT BOTH JOBS, TO SUBMIT TWO BIDS AND ONE COMBINED BID ON THE SAME DAY USING YOUR NORMAL OFFICE FORCE; AND THAT COMPETITION IS RESTRICTED SINCE MANY CONTRACTORS WHO WOULD BID BOTH JOBS INDIVIDUALLY CAN NOW BID ONLY ONE JOB. FURTHER, YOU QUESTION A STATEMENT, WHICH YOU SAY WAS MADE TO YOU BY THE PROCURING ACTIVITY, THAT THE PRACTICE OF WHICH YOU COMPLAIN SAVES THE GOVERNMENT MONEY.

THE RECORD MADE AVAILABLE TO OUR OFFICE SHOWS THAT IFB NO. DACA65-68 B- 0020, WHICH WAS AMENDED FOUR TIMES AFTER ITS ISSUANCE, SOLICITED BIDS ON FOUR SEPARATE SCHEDULES. SCHEDULE I CALLED FOR A BASE BID FOR CONSTRUCTION OF A FAR INFRA-RED LABORATORY (FIR LABORATORY) BUILDING AT FORT BELVOIR WITH FOUR RELATED SUBITEMS; SCHEDULE II SOLICITED A BASE BID FOR CONSTRUCTION OF A NIGHT VISION SIMULATOR LABORATORY BUILDING AND THREE RELATED SUBITEMS, ALSO AT FORT BELVOIR; SCHEDULE III CONSISTED OF A COMBINATION OF BOTH SCHEDULES I AND II; AND SCHEDULE IV COVERED SEVERAL OPTIONAL ADDITIVES. WITH THE ISSUANCE OF THE AMENDMENTS, THE LAST OF WHICH WAS DATED MAY 2, THE BID OPENING DATE WAS EXTENDED AND ULTIMATELY WAS SCHEDULED FOR MAY 8, OR 42 DAYS AFTER THE IFB WAS ORIGINALLY ISSUED.

PARAGRAPH 10, INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT), STANDARD FORM 22, INCLUDED THE FOLLOWING PROVISIONS RELATING TO THE AWARD OF THE CONTRACT: "/A) AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. "/B) THE GOVERNMENT MAY, WHEN IN ITS INTEREST, REJECT ANY OR ALL BIDS OR WAIVE ANY INFORMALITY IN BIDS RECEIVED. "/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR COMBINATION OF ITEMS OF A BID, UNLESS PRECLUDED BY THE INVITATION FOR BIDS OR THE BIDDER INCLUDES IN HIS BID A RESTRICTIVE LIMITATION.'

AMENDMENT NO. 3 TO THE IFB, ISSUED ON APRIL 26, INCLUDED THE FOLLOWING PERTINENT LANGUAGE: ,BASIS OF AWARD: ALL BLANKS MUST BE FILLED IN FOR EACH SCHEDULE FOR WHICH A BID IS SUBMITTED. BIDDERS SUBMITTING A BID FOR SCHEDULE I MUST QUOTE ON ADDITIVE ITEM NOS. 1, 2, AND 3 IN SCHEDULE IV. BIDDERS SUBMITTING A BID FOR SCHEDULE II MUST QUOTE ON ADDITIVE ITEM NOS. 4, 5, AND 6 IN SCHEDULE IV. BIDDERS SUBMITTING A BID FOR SCHEDULE III MUST QUOTE ON ALL ADDITIVE ITEMS IN SCHEDULE IV. ADDITIVE ITEM NOS. 1, 2, AND 3 WILL BE AWARDED ONLY TO THE SUCCESSFUL BIDDER FOR SCHEDULE I OR SCHEDULE III AND ADDITIVE ITEM NOS. 4, 5, AND 6 WILL BE AWARDED ONLY TO THE SUCCESSFUL BIDDER FOR SCHEDULE II OR SCHEDULE III. AWARD WILL BE MADE TO THE LOW BIDDER OR BIDDERS ON BASE SCHEDULE I, BASE SCHEDULE II, OR BASE SCHEDULE III, AND ANY ADDITIVE OR COMBINATION OF ADDITIVES, WHICHEVER IS IN THE BEST INTEREST OF THE GOVERNMENT.'

WE ARE ADVISED THAT SHORTLY AFTER THE IFB WAS ISSUED YOUR MR. BEIRO TELEPHONED THE NORFOLK DISTRICT AND DISCUSSED IT WITH THE CHIEF OF THE ENGINEERING DIVISION, WHOSE REPORT OF THE TELEPHONE CONVERSATION READS IN PART AS FOLLOWS:

"* * * HE (MR. BEIRO) STATED THAT BECAUSE OF THE AMOUNT OF WORK INVOLVED IN PREPARING BIDS ON THE SEVERAL SCHEDULES LISTED ON THE BID FORM, HE WOULD BE UNABLE TO SUBMIT A BID. HE INQUIRED AS TO WHY WE FOLLOWED THIS PRACTICE AND REQUESTED THAT WE CONSIDER TAKING BIDS ON THE TWO LABORATORIES SEPARATELY.

"I EXPLAINED THAT OUR PRIMARY REASON FOR COMBINING THE TWO BUILDINGS IN ONE INVITATION WAS TO MAKE IT POSSIBLE FOR CONTRACTORS WHO HAD THE CAPABILITY TO HANDLE BOTH BUILDINGS TO SUBMIT A COMBINED BID. IT WAS OUR BELIEF THAT BY COMBINING THEM, THE CONTRACTOR SHOULD EFFECT A SAVING IN HIS JOB COSTS AND THEREBY BE ABLE TO SUBMIT A LOWER BID ON THAT SCHEDULE. I ALSO EXPLAINED TO MR. BEIRO THAT HE WAS NOT PRECLUDED FROM SUBMITTING A BID - THAT HE COULD BID ON SCHEDULES I AND II, AND THAT IF HE COULD HANDLE ONLY ONE OF THEM, HE COULD STATE IN HIS BID THAT HE WOULD ACCEPT AWARD FOR ONLY ONE OF THE BUILDINGS.

"ANOTHER ADVANTAGE TO THE GOVERNMENT IS THAT ADMINISTRATIVE EXPENSES WOULD BE LESS SHOULD ONE CONTRACTOR BE AWARDED BOTH PROJECTS BECAUSE THEY WOULD BE COMBINED IN A SINGLE CONTRACT.

"MR. BEIRO ALSO REFERRED TO THE FEDERAL GOVERNMENT'S EFFORTS TO ENCOURAGE SMALL BUSINESS. I EXPLAINED THAT SEPARATING THE TWO PROJECTS WOULD NOT REDUCE EITHER INVITATION TO THE LEVEL OF A SMALL BUSINESS SET-ASIDE SINCE EACH PROJECT WAS WELL OVER $500,000.'

ON MAY 8, BIDS WERE OPENED. ON SCHEDULE I ALONE, YOUR BID OF $717,725 WAS LOWEST, AND THE BID OF THOMAS W. YODER COMPANY, INC. (YODER), ROCKVILLE, MARYLAND, IN THE AMOUNT OF $736,375, WAS SECOND LOW. HOWEVER, IT WAS DETERMINED TO BE TO THE GOVERNMENT'S ADVANTAGE TO AWARD A CONTRACT FOR THE FIR LABORATORY (SCHEDULE I) WITH ADDITIVES 1 AND 2 OF SCHEDULE IV, WHICH COVERED CONSTRUCTION OF A PEDESTRIAN BRIDGE AND INSTALLATION OF AN ELECTROHYDRAULIC SERVICE ELEVATOR, RESPECTIVELY. ON ADDITIVE 1, YOU QUOTED A PRICE OF $60,000 AND YODER QUOTED A PRICE OF $40,000. ADDITIVE 2, YOUR PRICE WAS $20,000, WHILE YODER'S PRICE WAS $16,000. AFTER ADDITION OF SUCH PRICES TO THE RESPECTIVE SCHEDULE I BID PRICES, YODER WAS LOW WITH A TOTAL BID OF $792,375, AND YOU WERE SECOND WITH A TOTAL BID OF $797,725. IN THE LIGHT OF YOUR PROTEST, HOWEVER, WE ARE ADVISED THAT AWARD IS BEING DELAYED BY THE DEPARTMENT OF THE ARMY PENDING OUR DECISION IN THE MATTER.

WITH RESPECT TO THE SECOND IFB, WHICH YOU HAVE NOT IDENTIFIED, THE RECORD INDICATES THAT AN IFB WAS ISSUED FOR THE CONSTRUCTION AT FORT BELVOIR OF A BARRACKS AND MESS HALL AND BACHELOR OFFICER QUARTERS (BOQ). HOWEVER, THE CONTRACTING OFFICER STATES THAT IT IS NOW PLANNED TO ADVERTISE THE BARRACKS AND BOQ ON AN INDIVIDUAL BASIS, AND YOUR PROTEST, INSOFAR AS THESE PROJECTS ARE CONCERNED, THEREFORE IS ACADEMIC.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 18-201, PERTAINING TO CONSTRUCTION CONTRACTS, PROVIDES FOR THE USE OF FIRM FIXED-PRICE CONTRACTS GENERALLY, INCLUDING LUMP-SUM CONTRACTS FOR THE TOTAL WORK OR FOR DEFINED PARTS OF THE TOTAL WORK, UNIT PRICE CONTRACTS COVERING SPECIFIED QUANTITY UNITS OF WORK SUCH AS CUBIC YARDS OF EARTH OR CONCRETE OR SQUARE YARDS OF PAVEMENT, OR A COMBINATION OF BOTH. ASPR 2 201 (C) REQUIRES THAT THE FOLLOWING PROVISION, AMONG OTHERS, BE INCLUDED IN THE IFB FOR A CONSTRUCTION CONTRACT: "/XI) GOVERNMENT'S PRIVILEGE IN MAKING AWARDS. THE GOVERNMENT FURTHER RESERVES THE RIGHT TO MAKE AWARD OF ANY OR ALL SCHEDULES OF ANY BID, UNLESS THE BIDDER QUALIFIES SUCH BID BY SPECIFIC LIMITATION; ALSO TO MAKE AWARD TO THE BIDDER WHOSE AGGREGATE BID ON ANY COMBINATION OF BID SCHEDULES IS LOW. FOR THE PURPOSE OF THIS INVITATION FOR BIDS, THE WORD -ITEM- AS USED IN PARAGRAPH 10 (C) OF STANDARD FORM 22 SHALL BE CONSIDERED TO MEAN -SCHEDULE-.'

SUCH PROVISIONS, WHICH ARE IN ACCORD WITH LONG FOLLOWED GOVERNMENT PROCUREMENT PRACTICES, CLEARLY AUTHORIZE THE USE OF A SINGLE INVITATION TO ADVERTISE MORE THAN ONE ITEM OF CONSTRUCTION WORK, WITH A PROVISION PERMITTING AWARD ON EITHER AN AGGREGATE OR SEPARATE BASIS IN SPECIFIED CIRCUMSTANCES AT THE OPTION OF THE CONTRACTING AGENCY. THE DETERMINATION AS TO THE NUMBER OF SCHEDULES WHICH WILL BE INCLUDED IN A SPECIFIC IFB IS, LIKE THE DRAFTING OF THE SPECIFICATIONS FOR THE WORK, A MATTER PRIMARILY WITHIN THE PROVINCE OF THE CONTRACTING AGENCY, AND OUR OFFICE WILL NOT QUESTION THE DETERMINATION UNLESS THERE IS EVIDENCE THAT IT WAS MADE WITHOUT REGARD TO THE GOVERNMENT'S INTEREST. B-146343, NOVEMBER 1, 1961; B-154644, SEPTEMBER 28, 1964.

AS A PRACTICAL MATTER, WE ARE UNABLE TO SEE HOW THE PREPARATION OF MORE THAN ONE SET OF QUOTATIONS UNDER A SINGLE IFB ADVERTISING TWO OR MORE WORK SCHEDULES WOULD BE ANY MORE BURDENSOME TO A BIDDER, EITHER SMALL OR LARGE BUSINESS, THAN THE PREPARATION OF INDIVIDUAL BIDS ON THE SAME PROJECTS ADVERTISED UNDER CONCURRENTLY ISSUED SEPARATE IFB-S. WHEN A SINGLE IFB IS USED FOR TWO OR MORE SCHEDULES, A BIDDER HAS A CHOICE OF BIDDING ON ANY ONE OR MORE, AND HIS FAILURE TO BID ON ANY PARTICULAR SCHEDULE OR SCHEDULES DOES NOT PREJUDICE HIS RIGHT TO AWARD OF A CONTRACT ON THE SCHEDULE OR SCHEDULES ON WHICH HE HAS BID. IN THIS CONNECTION, IT MAY BE OBSERVED, WITH RESPECT TO THE PROCUREMENT IN QUESTION, THAT YOUR FAILURE OR INABILITY TO BID ON THE NIGHT VISION SIMULATOR LABORATORY BUILDING, OR THE COMBINATION OF BOTH BUILDINGS, DURING THE 42 DAYS WHICH WERE ALLOWED UNDER THE IFB, AS AMENDED, FOR SUBMISSION OF BIDS, DID NOT APPARENTLY AFFECT YOUR ABILITY TO SUBMIT A COMPETITIVE BID ON THE WORK ON WHICH YOU ELECTED TO COMPETE. AS A MATTER OF RECORD, THE ABSTRACT OF BIDS SHOWS THAT FIVE OF THE EIGHT BIDDERS BID ONLY ON THE FIR LABORATORY BUILDING, TWO BID ON BOTH BUILDINGS INDIVIDUALLY AND IN COMBINATION, AND ONE BID ONLY ON THE COMBINATION. THE SCHEDULE I BIDS OF THE TWO BIDDERS WHO BID BOTH BUILDINGS WERE THIRD AND SIXTH LOWEST OF THE SEVEN INDIVIDUAL BIDS ON THAT SCHEDULE. IN THE CIRCUMSTANCES, WE SEE NO COMPELLING REASON FOR RECOMMENDING DISCONTINUANCE OF THE PROCEDURES WHICH YOU QUESTION.

FOR THE REASONS STATED, AND SINCE WE HAVE NO REASON TO BELIEVE THAT THE SELECTION OF THE ITEMS ON WHICH THE AWARD WILL BE BASED WAS MOTIVATED BY ANYTHING OTHER THAN THE INTEREST OF THE UNITED STATES, WE ARE UNABLE TO FIND ANY LEGAL BASIS FOR OBJECTION TO THE ACCEPTANCE OF YODER'S BID ON SUCH ITEMS.