B-181974, JAN 17, 1975

B-181974, JAN 17, 1975

FAILURE OF BIDDER TO BID ON ALL ITEMS INCLUDING ALTERNATE AS REQUIRED BY IFB DOES NOT RENDER BID NONRESPONSIVE TO THE ITEMS ACTUALLY BID UPON WHEN IT IS ADMINISTRATIVELY DETERMINED THAT AN AWARD ON THOSE ITEMS RATHER THAN ON AN OMITTED ALTERNATE WOULD BE MOST ADVANTAGEOUS TO GOVERNMENT.

HOYER CONSTRUCTION CO., INC.:

INVITATION FOR BIDS (IFB) NO. F34650-74-B-0209 WAS ISSUED ON MAY 17, 1974, BY THE DEPARTMENT OF THE AIR FORCE FOR MAINTENANCE OF THE INDUSTRIAL WASTE TREATMENT FACILITY AT TINKER AIR FORCE BASE, OKLAHOMA.

THE IFB CALLED FOR INDIVIDUAL BIDS FOR 39 DIFFERENT ITEMS. ON FIVE OF THE ITEMS (4, 5, 11, 14, AND 19) THE BID SCHEDULE REQUESTED ALTERNATE BIDS (4A, 5A, 11A, 14A AND 19A). THE BASIC BID ON EACH OF THESE ITEMS REQUIRED A PRICE FOR INSTALLATION OF A STATED SQUARE FOOTAGE OF "TANK PATCHES" ON CERTAIN DESIGNATED TANKS. THE ALTERNATE BIDS WERE FOR A LARGER SQUARE FOOTAGE OF "TANK LININGS" FOR THE SAME DESIGNATED TANKS. SECTION 5 OF THE TECHNICAL SPECIFICATIONS OF THE IFB EXPLAINS THAT THE "PATCHING" PROCESS OF THE BASE BID ITEMS, AND THE "RELINING" PROCESS OF THE ALTERNATE ITEMS ARE MUTUALLY EXCLUSIVE METHODS OF REPAIRING THE SAME TANKS. THE "RELINING" PROCESS WAS CONSIDERED TO BE A SUPERIOR TYPE OF REPAIR, AND WAS THEREFORE PREFERRED BY THE AIR FORCE IF THERE WERE SUFFICIENT FUNDS AVAILABLE FOR THE PROJECT. SINCE IT WAS SUBSEQUENTLY DETERMINED THAT AWARD OF THE ALTERNATE ITEMS WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT, THE CONTRACTING OFFICER EVALUATED ALL THE BIDS RECEIVED FOR THESE ITEMS ON THE ALTERNATE BASIS.

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 24, 1974. OREN CHILDERS CONSTRUCTION CO., INC., THE APPARENT LOW BIDDER AT $171,075.46, BID ON ALL ITEMS, BUT FAILED TO FURNISH A SUFFICIENT BID GUARANTEE AS REQUIRED BY THE IFB. THEREFORE, IT WAS FOUND NONRESPONSIVE UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-404.2(H) (1974 ED.) AND ITS BID WAS REJECTED. THE NEXT LOW BIDDER WAS DEL-CO CONSTRUCTION, INC. (DEL CO) AT $201,355.02.

HOWEVER, DEL-CO HAD FAILED TO ENTER BID PRICES FOR BASIC ITEMS 4, 5, 11, 14 AND 19 AND WAS INITIALLY DETERMINED TO BE NONRESPONSIVE FOR FAILURE TO BID ON ALL ITEMS AS REQUIRED. THE THIRD LOW BIDDER WAS HOYER CONSTRUCTION CO., INC. (HOYER), AT $209,613.89.

AS THE RECORD INDICATES, DEL-CO PROTESTED THE CONTRACTING OFFICER'S DETERMINATION THAT ITS BID WAS NONRESPONSIVE FOR FAILURE TO BID ON ALL ITEMS. DEL-CO HAD ENTERED PRICES FOR THE ALTERNATE BID ITEMS, BUT INSTEAD OF ENTERING PRICES FOR THE BASE BID ITEMS, IT SIMPLY WROTE IN THE LETTERS "ALT." THE PROTESTER EXPLAINED THAT IT WAS BIDDING THE SAME PRICE FOR THE BASIC ITEMS AND THE ALTERNATE ITEMS, AND THAT SUCH BIDDING PROCEDURE WAS EVIDENT FROM THE EXTENDED BID TOTAL. THE CONTRACTING OFFICER WAS OF THE OPINION, HOWEVER, THAT DEL-CO'S INTENDED BID FOR ITEMS 4, 5, 11, 14 AND 19 COULD NOT BE ASCERTAINED, SINCE THE LETTERS "ALT" WRITTEN IN THE SPACE FOR THE BASE PRICE ENTRIES COULD BE INTERPRETED TO MEAN EITHER OF TWO THINGS, (1) THAT NO BID AT ALL WAS INTENDED; OR (2) THAT THE SAME BID AS FOR THE ALTERNATE WAS INTENDED. IN VIEW OF THIS AMBIGUITY, THE CONTRACTING OFFICER, SUPPORTED BY AN OPINION OF THE JUDGE ADVOCATE GENERAL'S OFFICE (JAG), DETERMINED THAT NO AWARD COULD BE MADE TO DEL-CO FOR ITEMS 4, 5, 11, 14 AND 19.

THE JAG OPINION STATED, HOWEVER, THAT WHILE NO AWARD COULD BE MADE TO DEL -CO FOR ITEMS 4, 5, 11, 14 AND 19 SINCE ITS BID PRICES COULD NOT BE DETERMINED, THIS DID NOT PRECLUDE CONSIDERATION OF ITS BID ON THE BASIS OF THE ALTERNATE BID ITEMS IN CONJUNCTION WITH THE OTHER BASE BID ITEMS, SINCE DEL-CO'S BID WAS RESPONSIVE TO THIS EXTENT. IN SUPPORT OF THIS POSITION, THE JAG OPINION POINTS OUT THAT SECTION 5 OF THE TECHNICAL SPECIFICATIONS, AS MENTIONED ABOVE, CONTEMPLATES TWO MUTUALLY EXCLUSIVE METHODS OF REPAIRING THE SAME TANKS IN THE PROJECT, I.E. "PATCHING" OR "RELINING," AND THAT THE RELINING PROCESS IS CONSIDERED TO BE A SUPERIOR METHOD WHICH THE AIR FORCE WOULD PREFER. CITING DECISIONS OF OUR OFFICE IN FURTHER SUPPORT OF ITS POSITION, THE JAG OPINION STATED THAT FAILURE OF THE BIDDER TO BID IN THE ALTERNATIVE DOES NOT RENDER ITS BID NONRESPONSIVE WITH RESPECT TO THE ITEMS ACTUALLY BID UPON, WHEN IT IS ADMINISTRATIVELY DETERMINED THAT AN AWARD BASED ON THOSE ITEMS RATHER THAN ON AN OMITTED ALTERNATIVE WOULD BE ADVANTAGEOUS TO THE GOVERNMENT. ON THE BASIS OF THE JAG OPINION, AND SINCE IT WAS DETERMINED THAT IT WAS MOST ADVANTAGEOUS TO MAKE AN AWARD ON THE ALTERNATE ITEMS, THE CONTRACTING OFFICER MADE AWARD TO DEL-CO.

HOYER NOW PROTESTS THE AWARD TO DEL-CO ASSERTING THAT IN ACCORDANCE WITH PARAGRAPH 5B OF STANDARD FORM 22, MADE A PART OF THE IFB, DEL-CO'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE IT USED THE LETTERS "ALT" FOR BASE BID ENTRIES FOR ITEMS 4, 5, 11, 14 AND 19, RATHER THAN ENTERING PRICES REQUIRED BY THAT PARAGRAPH.

WE HAVE PREVIOUSLY HELD THAT THE FAILURE OF A BIDDER TO RESPOND TO A REQUEST FOR PRICES ON ALL ALTERNATES CONSTITUTES NO BASIS, SUFFICIENT IN ITSELF, TO REQUIRE REJECTION OF THE BID. SUCH AN OMISSION CAN ONLY OPERATE TO THE ADVANTAGE OF OTHER BIDDERS RATHER THAN TO THEIR DISADVANTAGE, SINCE THE BIDDER THEREBY ELIMINATES ITSELF FROM COMPETITION WITH THE OTHER BIDDERS INSOFAR AS THE ALTERNATE WORK IS CONCERNED. FURTHER, THE REQUEST FOR ALTERNATE BIDS IS SOLELY FOR THE BENEFIT OF THE GOVERNMENT, AND WHERE A BID AS MADE COVERS THE ENTIRE WORK CONTEMPLATED UNDER ONE ALTERNATE, THE FAILURE TO BID ON ANOTHER ALTERNATE DOES NOT PRECLUDE ACCEPTANCE OF A BID WHICH COVERS THE ALTERNATE SELECTED FOR AWARD BY THE GOVERNMENT. IN SUCH A CASE, HOWEVER, THE BIDDER DOES RUN THE RISK THAT SHOULD THE GOVERNMENT ELECT TO ACCEPT AN ALTERNATE NOT BID UPON HIS BID WOULD THEN BE NONRESPONSIVE TO THAT ALTERNATE. B-175055, MARCH 28, 1972; 49 COMP. GEN. 639 (1970); 42 ID. 61 (1962); B-168298, DECEMBER 22, 1969. THIS RULE APPLIES EVEN THOUGH BIDS ON ALTERNATES ARE REQUIRED BY THE CLEAR LANGUAGE OF THE INVITATION, SO LONG AS IT IS ADMINISTRATIVELY DETERMINED THAT THE GOVERNMENT'S BEST INTEREST WOULD BE SERVED BY MAKING AN AWARD ON THE ITEM BID UPON RATHER THAN THE OMITTED ALTERNATE. 45 COMP. GEN. 682 (1966).

ACCORDINGLY, BASED ON THE PRESENT RECORD, WE FIND NO LEGAL OBJECTION TO THE AWARD OF THE CONTRACT TO DEL-CO, AND THE PROTEST IS DENIED.