B-181580, NOV 26, 1974

B-181580, NOV 26, 1974

1. FAILURE OF BIDDER TO SIGN BID IS WAIVABLE AS MINOR INFORMALITY WHEN DOCUMENTS ACCOMPANYING BID, SUCH AS BID BOND, ARE PROPERLY EXECUTED AND CLEARLY EVIDENCE INTENT OF BIDDER TO BE BOUND BY BID SUBMITTED. 2. FAILURE OF IFB TO PROVIDE SPECIFIC SPACE FOR BID ON ALTERNATE ITEM DOES NOT RENDER SOLICITATION DEFECTIVE SO AS TO AFFECT VALIDITY OF AWARD THEREUNDER, NOR DOES IT ALLOW ACCEPTANCE OF ONLY LUMP SUM BID ALLEGED TO INCORPORATE ALTERNATE ITEM, AS LUMP SUM BID IS RENDERED NONRESPONSIVE ONCE PROCURING ACTIVITY ELECTS TO EXERCISE ALTERNATE PROVISION, AND LUMP SUM BID CANNOT BE CLARIFIED AFTER BID OPENING AS TO WHETHER, AND TO WHAT EXTENT, IT INCLUDES PRICE FOR ALTERNATE ITEM, AS THIS WOULD PREJUDICE COMPETITIVE PROCUREMENT SYSTEM.

JAMES J. MADDEN, INC.:

ON APRIL 5, 1974, INVITATION FOR BIDS (IFB) NO. INV-3000-4-0100 WAS ISSUED BY THE DIVISION OF CONTRACTING, NATIONAL CAPITAL PARKS, DEPARTMENT OF THE INTERIOR (INTERIOR) FOR RENOVATION OF THE PAINT SHOP LOCATED WITHIN THE WHITE HOUSE, WASHINGTON, D.C.

THE IFB CONTEMPLATED A LUMP SUM BID WHICH WOULD INCLUDE THE PRICE OF LOCKERS MADE BY EITHER LYON METAL PRODUCTS, INC., OR REPUBLIC STEEL, AND AN ALTERNATE BID REPRESENTING THE ADDITIONAL COST OF SUBSTITUTING CUSTOM MADE STEEL LOCKERS FOR THOSE INCLUDED IN THE LUMP SUM PRICE.

SEVEN BIDS WERE TIMELY RECEIVED AND WERE OPENED AT 1:00 P.M. ON APRIL 24. THE APPARENT LOW BID ON THE LUMP SUM BASIS WAS SUBMITTED BY WELCH & RUSHE PLUMBING & HEATING, INC. (W&R), IN THE AMOUNT OF $91,500. W&R ALSO BID $666 FOR THE ALTERNATE ITEM, CUSTOM MADE STEEL LOCKERS. THE SECOND LOW BID ON THE LUMP SUM BASIS WAS SUBMITTED BY THE PROTESTER, JAMES J. MADDEN, INC. (MADDEN). HOWEVER, MADDEN'S BID CONTAINED NO SEPARATE BID ON THE ALTERNATE ITEM, CUSTOM MADE STEEL LOCKERS, AND ADDITIONALLY, WAS SUBMITTED WITHOUT BEING PROPERLY EXECUTED.

AFTER ALL BIDS WERE COMPARED, IT WAS DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO MAKE AN AWARD ON THE BASIS OF A LUMP SUM BID PLUS THE ALTERNATE ITEM. THEREFORE, INTERIOR DETERMINED THAT ONLY THOSE BIDS (FOUR OF THE SEVEN SUBMITTED) WHICH CONTAINED PRICES FOR THE ALTERNATE ITEM, AS WELL AS THE LUMP SUM BID FOR THE OTHER WORK, WOULD BE FURTHER CONSIDERED FOR AWARD.

UPON DISCOVERING THAT ITS BID WAS INELIGIBLE FOR FURTHER CONSIDERATION FOR AWARD, MADDEN PROTESTED FIRST TO THE PROCURING ACTIVITY AND SUBSEQUENTLY TO OUR OFFICE.

MADDEN BASES ITS PROTEST ON TWO POINTS. MADDEN CONTENDS THAT THE FAILURE TO SIGN ITS BID WAS A MINOR INFORMALITY WHICH CAN BE WAIVED UNDER FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.405 (1964 2D ED.). SECONDLY, MADDEN ASSERTS THAT THE IFB, STANDARD FORM 21, CALLED FOR ONLY ONE LUMP SUM PRICE FOR ALL WORK CALLED FOR BY THE INVITATION. THEREFORE, MADDEN STATES THAT ITS LUMP SUM PRICE INCLUDES THE ALTERNATE ITEM AND THUS ITS BID IS ACTUALLY THE LOWEST BID SUBMITTED. ACCORDINGLY, IT IS MADDEN'S POSITION THAT THERE WAS NO INDICATION PARTIAL PROPOSALS WOULD BE ENTERTAINED, THAT AWARD OF LESS THAN THE ENTIRE WORK WAS POSSIBLE, OR THAT AWARD COULD BE MADE ON AN ITEM BY ITEM BASIS, AND THEREFORE, THE ONLY PRICES SUBJECT TO EVALUATION ARE THE TOTAL PRICES (THE LUMP SUM PRICES), WHICH ENCOMPASS ALL WORK COVERED BY THE IFB, INCLUDING THE INSTALLATION OF THE STEEL LOCKERS.

THERE APPEARS TO BE NO DISPUTE REGARDING MADDEN'S FIRST CONTENTION. FPR SEC. 1-2.405(C) (1964 2D ED.) PROVIDES FOR WAIVER, AS A MINOR INFORMALITY, OF A BIDDER'S FAILURE TO SIGN ITS BID WHEN THE UNSIGNED BID IS ACCOMPANIED BY OTHER MATERIAL INDICATING THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT. IN THE INSTANT CASE, MADDEN'S UNEXECUTED BID WAS ACCOMPANIED BY A PROPERLY EXECUTED BID BOND. THE ACCOMPANIMENT OF THE BID BY THE BID BOND EVIDENCES MADDEN'S INTENT TO BE BOUND BY ITS UNSIGNED BID. ACCORDINGLY, THE FAILURE TO EXECUTE THE BID COULD BE CONSIDERED AS A MINOR INFORMALITY AND WAIVABLE.

AS CONCERNS MADDEN'S SECOND CONTENTION, INTERIOR STATES THAT UNDER THE TERMS OF THE IFB, IT HAD THE OPTION OF MAKING AN AWARD FOR EITHER ALL OF THE WORK CONTEMPLATED BY THE SPECIFICATIONS OR ALL OF THE WORK PLUS THE ALTERNATE, THE INSTALLATION OF CUSTOM MADE STEEL LOCKERS. INTERIOR RECOGNIZES THAT THERE IS NO REQUIREMENT THAT A BIDDER RESPOND TO ALTERNATE ITEMS OF AN INVITATION TO RENDER ITS BID RESPONSIVE. HOWEVER, INTERIOR ARGUES, PROPERLY WE THINK, THAT A BIDDER BY FAILING TO RESPOND TO AN ALTERNATE ITEM, RUNS THE RISK THAT SHOULD THE GOVERNMENT ELECT TO ACCEPT THE ALTERNATIVE NOT BID UPON, ITS BID COULD NOT BE CONSIDERED FOR ANY AWARD WHICH INVOLVES THE ALTERNATE BID ITEM. SEE 49 COMP. GEN. 639, 645 (1970).

IN THE INSTANT SOLICITATION, SECTION 10A, PARAGRAPH 4, STATED AS FOLLOWS:

"ALTERNATE: PROVIDE ALTERNATE PRICE FOR CUSTOM MADE STEEL LOCKERS TO FIT AROUND WALL LEDGE AS SHOWN."

HOWEVER, THE BID FORM (STANDARD FORM 21) ONLY INDICATED A REQUEST FOR PRICING AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE-DATED INVITATION FOR BIDS, THE UNDERSIGNED HEREBY PROPOSES TO PERFORM ALL WORK ***, FOR THE FOLLOWING AMOUNTS

LUMP SUM - $ ".

AS CAN BE SEEN, NO SPACE WAS PROVIDED FOR THE INSERTION OF A PRICE ON THE ALTERNATE ITEM. A REVIEW OF THE SEVEN BIDS SUBMITTED DISCLOSES THAT FOUR BIDDERS SAW FIT TO DESIGNATE AN ALTERNATE PRICE BELOW THE LUMP SUM PRICE ON THE BID FORM. THEREFORE, THE QUESTION PRESENTED FOR RESOLUTION IS WHAT EFFECT, IF ANY, DID THE BID FORM'S FAILURE TO PROVIDE FOR AN ALTERNATE PRICE HAVE ON THE INSTANT PROCUREMENT.

IN OUR OPINION, THE IFB CLEARLY REQUESTED SUBMISSION OF AN ALTERNATE PRICE FOR THE CUSTOM MADE STEEL LOCKERS. ALSO, PARAGRAPH 10(C) OF THE "INSTRUCTIONS TO BIDDERS" RESERVED THE RIGHT TO THE GOVERNMENT TO MADE AN AWARD ON ANY ITEM OR COMBINATION OF ITEMS BID. THEREFORE, IT WAS INCUMBENT UPON ANY BIDDER WHO DESIRED TO BE CONSIDERED FOR AWARD ON THE ALTERNATE ITEM TO SUBMIT A PRICE FOR THE ALTERNATE ITEM SOMEWHERE ON THE BID FORM. IT WOULD BE INAPPROPRIATE TO MAKE AN AWARD WHICH INCLUDED THE ALTERNATE IF ONLY A LUMP SUM BID WAS SUBMITTED. THIS CAN BE SEEN BY THE FOLLOWING - IF ONLY A LUMP SUM IS SUBMITTED, THE CONTRACTING OFFICER HAS NO INDICATION AS TO WHETHER THE ALTERNATE ITEM IS INCLUDED, AND HOW MUCH OF THE AMOUNT BID IS APPORTIONABLE TO THE ALTERNATE. IF CLARIFICATION IS REQUESTED BY THE CONTRACTING OFFICER AFTER BID OPENING, THE BIDDER WOULD HAVE THE UNFAIR ADVANTAGE OF ESTABLISHING AN AMOUNT FOR THE ALTERNATE ITEM AFTER ALL OTHER BIDS HAVE BEEN MADE PUBLIC. THIS, IN ESSENCE, WOULD BE TANTAMOUNT TO AFFORDING THE BIDDER "TWO BITES AT THE APPLE," IN THAT THE BIDDER COULD SET THE ALTERNATE ITEM PRICE AT A LEVEL MOST ADVANTAGEOUS TO ITSELF IN LIGHT OF ALL OTHER BIDS SUBMITTED. THE CREATION OF AN OPPORTUNITY OF THIS NATURE IS CONTRARY TO ESTABLISHED PROCUREMENT PRACTICES. THEREFORE, SINCE INTERIOR DETERMINED THAT EXERCISE OF THE ALTERNATE ITEM WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT, ALL BIDS SUBMITTED ON A LUMP SUM ONLY BASIS WERE APPROPRIATELY REMOVED FROM FURTHER CONSIDERATION.

AS CONCERNS THE FAILURE OF THE BID FORM TO PROVIDE A SPECIFIC MANNER IN WHICH TO BID ON THE ALTERNATE ITEM, WE DO NOT BELIEVE THAT THIS DEFECT IS SUFFICIENT TO WARRANT AN UPSETTING OF THE PROCUREMENT AT THIS TIME. SEE 52 COMP. GEN. 886 (1973) AND CASES CITED THEREIN. AS STATED ABOVE, FOUR BIDDERS DEVISED THEIR OWN METHOD OF BIDDING ON THE ALTERNATE ITEM ON THE LOWER HALF OF THE FIRST PAGE, NOT CONTAINING ANY PRINTED MATTER. HOWEVER, TO AVOID SITUATIONS LIKE THIS FROM OCCURRING IN FUTURE PROCUREMENTS, WE ARE RECOMMENDING TO THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR THAT CORRECTIVE MEASURES BE TAKEN IN THE DRAFTING OF SOLICITATIONS TO BETTER ALERT PROSPECTIVE BIDDERS AS TO HOW PRICES ON ALTERNATE ITEMS SHOULD BE SUBMITTED.

WITH REGARD TO MADDEN'S LETTER OF SEPTEMBER 6, 1974, WHICH RAISES THE ISSUE THAT INTERIOR DELAYED OVER TWO MONTHS IN RESPONDING TO ITS PROTEST, OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. PART 20 (1974) EXPLAIN THAT THE GAO CANNOT IMPOSE TIME LIMITS UPON CONTRACTING AGENCIES. THEREFORE, SECTION 20.5 OF THE ABOVE CITED REGULATION IS ONLY A GUIDELINE WHICH WE HOPE THE AGENCIES WILL FOLLOW. FAILURE TO RESPOND WITHIN 20 DAYS DOES NOT RESULT IN SANCTIONS BEING IMPOSED UPON THE AGENCY. IN ANY EVENT, SINCE WE HAVE FOUND NO MERIT TO THE PROTEST, THE COMPLAINED OF DELAY HAS NOT WORKED TO THE DETRIMENT OF MADDEN.

ACCORDINGLY, FINDING NO LEGAL DEFECT IN THE INSTANT SOLICITATION, THE PROTEST IS DENIED.