B-196075.2, FEB 3, 1981

B-196075.2, FEB 3, 1981

DIGEST: ALTERATION OF BID FORM INDICATING BIDDER RESERVED RIGHT TO USE UNACCEPTABLE SEWER PIPE INSTALLATION TECHNIQUE MADE BID NONRESPONSIVE.

GARNEY COMPANIES, INC.:

GARNEY COMPANIES, INC. (GARNEY) COMPLAINS OF AN ENVIRONMENTAL PROTECTION AGENCY (EPA) REGION VII DECISION APPROVING THE REJECTION OF ITS BID AS NONRESPONSIVE TO A SOLICITATION ISSUED BY THE CITY OF KANSAS CITY, MISSOURI. KANSAS CITY SOUGHT BIDS TO INSTALL A SEWER IN CONNECTION WITH THE CONSTRUCTION OF INDIAN CREEK INTERCEPTOR SECTION I UNDER PROJECT CONTRACT 125. THE CONTRACT IS SUPPORTED IN LARGE PART BY FUNDS GRANTED BY EPA.

KANSAS CITY'S SOLICITATION PERMITTED BIDS ON ANY OF THREE ALTERNATE BASES. UNDER ALL ALTERNATES TUNNELING WAS REQUIRED THROUGH 130 FEET WHERE THE SEWER WAS TO PASS UNDER A RIGHT-OF-WAY BELONGING TO THE MISSOURI PACIFIC RAILROAD. ALTERNATE 3 ALLOWED BIDS BASED ON EITHER TRENCHING OR TUNNELING TECHNIQUES (IN ALL BUT THE RIGHT-OF-WAY), SUBJECT TO TWO PRINCIPAL RESTRICTIONS: (1) BECAUSE A PORTION OF THE SEWER WOULD RUN ADJACENT TO U. S. ARMY CORPS OF ENGINEERS (CORPS) FLOOD CONTROL WORKS, TUNNELING THERE WAS PERMITTED ONLY IF THE TUNNELING METHOD USED WAS APPROVED BY THE CORPS, AND (2) "TRENCH BOX, JACKED SHIELD, OR OTHER SIMILAR MOVABLE SHORING SYSTEMS" WERE EXPRESSLY PROHIBITED IF SEWER WAS TO BE LAID IN TRENCHES. MOREOVER, THE SOLICITATION REQUIRED THAT BIDDERS SUBMIT DATA DESCRIBING ANY TUNNELING METHOD PROPOSED, AND INDICATED THAT:

"TUNNEL METHODS *** WHICH UTILIZE THE INSTALLATION OF LINER PLATES AGAINST AN EXCAVATED SURFACE WILL NOT BE ACCEPTABLE. TUNNEL METHODS WHICH RESULT IN INTIMATE CONTACT OF THE TUNNEL LINER WITH THE EXCAVATED WALLS AND WHICH PROVIDE CONTINUOUS PRESSURE AGAINST THE TUNNEL FACE WILL BE CONSIDERED."

GARNEY BID ON ALTERNATE 3. THE BID FORM FURNISHED BY KANSAS CITY PROVIDED SPACE FOR BIDDERS ELECTING THAT ALTERNATE TO ITEMIZE PRICING FOR TRENCHING AND TUNNELING AS SEPARATE LINE ITEMS. GARNEY ANNOTATED ITS BID BY ENTERING "NO BID" FOR THOSE ITEMS RELATING TO TRENCHING. WHERE THE BIDDER WAS TO ENTER THE LENGTH OF SEWER PIPE TO BE "INSTALLED IN TUNNEL," GARNEY LISTED THE ENTIRE LENGTH OF THE PROJECT, CROSSED OUT THE WORDS "IN TUNNEL," AND WROTE ON ITS BID FORM "BY SPECIAL ZOKOR JACKING MACHINE OR EQUIVALENT, OR OPEN-CUT USING A SPECIAL FABRICATED STEEL SHEETING WITH HYDRAULIC RAMS AT THE CONTRACTOR'S OPTION." A "ZOKOR JACKING MACHINE" DIGS TUNNELS, WHILE "OPEN-CUT" IS A TRENCHING TECHNIQUE.

KANSAS CITY REJECTED GARNEY'S BID AS NONRESPONSIVE BASED ON THE RECOMMENDATIONS OF BOTH ITS CONSULTING ENGINEER AND THE CORPS. THE CORPS CONCLUDED THAT THE ZOKOR TUNNELING METHOD WOULD NOT PROVIDE CONTINUOUS SUPPORT OF THE SURROUNDING EARTH DURING CONSTRUCTION BECAUSE NO LINER WAS USED, THEREBY PRECLUDING GROUTING ALONG THE PIPE WHEN THE SEWER PIPE WAS "JACKED" FORWARD AS TUNNELING PROCEEDED. THE CORPS ALSO FOUND GARNEY'S PROPOSED OPEN-CUT METHOD UNACCEPTABLE BECAUSE IT INCLUDED THE USE OF FABRICATED STEEL SHEETING WITH HYDRAULIC RAMS, WHEREAS THE USE OF SUCH MOVABLE SHORING SYSTEMS WAS PROHIBITED BY THE SPECIFICATIONS.

ON APPEAL PURSUANT TO 40 C.F.R. SEC. 35.939(E) (1980), THE EPA REGIONAL ADMINISTRATOR CONCURRED WITH KANSAS CITY'S DECISION. THE ADMINISTRATOR CONCLUDED THAT:

1. NOTWITHSTANDING GARNEY'S VIEW THAT ITS BID REFLECTED A COMMITMENT TO PERFORM IN ACCORDANCE WITH THE SOLICITATION, AND THE "WARRANT" ON THE BID ENVELOPE THAT THE ENCLOSED BID INCLUDED NO MODIFICATIONS, DEVIATIONS, RIDERS OR QUALIFICATIONS, THE LANGUAGE ADDED BY GARNEY IN ANNOTATING ITS BID WAS CONTROLLING AS TO THE BID'S RESPONSIVENESS.

2. GARNEY'S ANNOTATION COULD NOT BE IGNORED EVEN THOUGH, AS GARNEY NOTED, IT WAS NOT INITIALED. DO SO, THE REGIONAL ADMINISTRATOR CONCLUDED, WOULD LEAVE THE BID "TOTALLY DEFICIENT IN THE REQUIRED DESCRIPTION OF THE PROPOSED TUNNELING METHOD," WHICH WAS MATERIAL. CONSEQUENTLY, THE DEFECT COULD NOT BE DISREGARDED.

3. THE ANNOTATION AND DESCRIPTIVE DATA SUBMITTED BY GARNEY WITH ITS BID MADE ITS BID NONRESPONSIVE, ESSENTIALLY FOR THE REASONS CITED BY KANSAS CITY, AND GARNEY'S BID COULD NOT BE MADE RESPONSIVE BY FURTHER EXPLANATION AFTER BIDS HAD BEEN OPENED.

IN THE COMPLAINT TO OUR OFFICE, GARNEY FIRST DISPUTES THE VIEW THAT IT IMPROPERLY QUALIFIED THE BID. GARNEY ARGUES THAT THE HANDWRITTEN NOTATION COULD NOT LOGICALLY BE CONSIDERED TO APPLY TO THE 130-FOOT SECTION UNDER THE RAILROAD SINCE TUNNELING IN THAT LOCATION WAS MANDATORY AND SINCE "TRENCHING WOULD SIMPLY NOT CONSTITUTE A REASONABLE OR FEASIBLE METHOD OF INSTALLING THE SEWER UNDER THE RAILROAD RIGHT-OF WAY." REGARDING THE REMAINING LENGTH OF SEWER LINE, GARNEY ASSERTS THAT THE SOLICITATION IN FACT DID GIVE THE CONTRACTOR THE OPTION TO INSTALL BY TUNNEL OR TRENCH, SUBJECT ONLY TO CORPS APPROVAL, AND THAT GARNEY SIMPLY WOULD TRENCH IF THE CORPS WOULD NOT APPROVE TUNNELING. ON THAT BASIS, GARNEY ARGUES THAT IT WAS NOT RESERVING TO ITSELF AN OPTION THAT IT DID NOT ALREADY HAVE UNDER THE SOLICITATION. IN THIS CONNECTION, GARNEY SUGGESTS THAT EVEN IF ITS INTENTION AS TO HOW IT WOULD PROCEED IS NOT ENTIRELY CLEAR FROM THE BID AS SUBMITTED, THE GRANTEE NEED ONLY REFER TO A BID "CLARIFICATION" TO THAT EFFECT WHICH THE FIRM SUBMITTED AFTER BID OPENING.

SECOND, GARNEY CONTENDS THAT EVEN IF THE HANDWRITTEN NOTATION IS VIEWED AS A QUALIFICATION, THE FIRM STILL WAS OBLIGATED TO COMPLY WITH THE INVITATION'S REQUIREMENTS. THE BASES THEREFOR ARE (1) A PROVISION IN THE SOLICITATION THAT "THE UNDERSIGNED BIDDER *** HEREBY PROPOSES *** TO *** COMPLETE ALL WORK STIPULATED IN, REQUIRED BY, AND IN ACCORDANCE WITH, THE PROPOSED CONTRACT DOCUMENTS *** IN THE MANNER AND TIME PRESCRIBED ***"; (2) THE "WARRANT" NOTED ABOVE; AND (3) THE FACT THAT THE NOTATION WAS NOT INITIALED BY GARNEY AS REQUIRED BY THE SOLICITATION'S INSTRUCTIONS TO BIDDERS OF ANY BID "ALTERATIONS."

WITH REGARD TO THE FIRST TWO POINTS, GARNEY CITES OUR DECISION IN 37 COMP.GEN. 27 (1957) IN WHICH WE STATED THAT "AN OVERALL OFFER TO COMPLY WITH THE SPECIFICATIONS, NOTWITHSTANDING MATERIAL VARIATIONS IN THE DETAILS OF THE BID, CURES SUCH VARIATIONS IN THE DETAILS AND RENDERS THE BID RESPONSIVE IF OTHERWISE CORRECT."

INITIALLY, WE POINT OUT THAT OUR RESEARCH DOES NOT DISCLOSE ANY MISSOURI LAW PERTINENT TO THE RESOLUTION OF THE COMPLAINT. IN ADDITION, ALL PROCEEDINGS AND ARGUMENTS HAVE BEEN CONDUCTED IN THE CONTEXT OF FEDERAL PROCUREMENT LAW AND REGULATION. ACCORDINGLY, WE WILL REVIEW THE COMPLAINT UNDER FEDERAL PRINCIPLES. MALOTT & PETERSON GRUNDY, CONTRACTORS; VIBRA WHIRL AND COMPANY, B-191887, JANUARY 2, 1979, 79-1 CPD 3.

TO BE RESPONSIVE, A BID AS SUBMITTED MUST REPRESENT AN UNEQUIVOCAL OFFER TO PERFORM THE EXACT THING CALLED FOR IN THE INVITATION. EDW. KOCHARIAN & COMPANY, INC., 58 COMP.GEN. 214, 217 (1979), 79-1 CPD 20. NEITHER A BLANKET STATEMENT THAT SPECIFICATIONS WILL BE MET NOR THE BIDDER'S INTENTION TO MEET THEM CAN RENDER ACCEPTABLE A BID WHICH ON ITS FACE MODIFIES THE BIDDER'S OBLIGATION THAT WOULD RESULT FROM CONTRACT AWARD. 49 COMP.GEN. 553, 556 (1970); THE ENTWISTLE COMPANY, B-192990, FEBRUARY 15, 1979, 79-1 CPD 112. OUR DECISION IN 37 COMP.GEN. 27, SUPRA, CITED BY GARNEY IN SUPPORT OF ITS POSITION, HAS BEEN OVERRULED TO THE EXTENT THAT IT IS INCONSISTENT WITH THAT POSITION. 40 COMP.GEN. 432 (1961).

EVEN IF WE WERE TO ACCEPT GARNEY'S POSITION THAT BECAUSE THE SPECIFICATIONS REQUIRED TUNNELING UNDER THE RIGHT-OF-WAY THE OPTION RESERVED BY GARNEY IN THE BID ANNOTATION COULD NOT BE CONSIDERED TO APPLY TO THAT AREA, AND THAT THE ANNOTATION WAS NOT INCONSISTENT WITH THE SOLICITATION REGARDING THE PROJECT LENGTH NOT SUBJECT TO CORPS APPROVAL, WE CANNOT AGREE THAT THE BID WAS RESPONSIVE. IN OUR VIEW, THE EFFECT OF GARNEY'S NOTATION THAT TUNNELING OR TRENCHING WOULD BE "AT THE CONTRACTOR'S OPTION" WAS TO MAKE IT AT LEAST AMBIGUOUS AS TO WHETHER IF A CONTRACT WERE AWARDED TO THE FIRM THE GRANTEE COULD AS A LEGAL MATTER COMPEL GARNEY TO TRENCH IN THE AREA ADJACENT TO THE CORPS FLOOD CONTROL WORKS BASED ON THE CORPS' DISAPPROVAL OF THE ZOKOR TUNNELING METHOD. THIS RESPECT, THE FACT THAT GARNEY NEVERTHELESS MAY HAVE INTENDED TO SEEK CORPS APPROVAL BEFORE TUNNELING AS REQUIRED BY THE INVITATION IS IRRELEVANT IF THAT INTENTION WAS NOT CLEARLY INDICATED IN THE BID. THE ENTWISTLE COMPANY, SUPRA. WE POINT OUT HERE THAT GARNEY'S FAILURE TO INITIAL THE SUBJECT ANNOTATION ALSO IS IRRELEVANT. CF. 40 COMP.GEN. 432, SUPRA.

THE BID ALSO COULD NOT BE ACCEPTED FOR ANOTHER REASON. EVEN IF GARNEY'S PROPOSED TUNNELING METHOD WOULD PROVIDE THE KIND OF CONTINUOUS SUPPORT KANSAS CITY ENVISIONED, THE CORPS HAS INDICATED THAT IT WOULD NOT APPROVE THE ZOKOR TUNNELING METHOD IN THE AREA ADJACENT TO ITS FLOOD CONTROL WORKS. THUS, GARNEY WOULD HAVE TO TRENCH THAT LENGTH. HOWEVER, THE FIRM HAS NEVER CHALLENGED THE FOLLOWING FINDING BY THE EPA REGIONAL ADMINISTRATOR:

"THE SPECIFICATIONS *** REQUIRE THAT *** TRENCH EXCAVATION SHALL HAVE VERTICAL SIDEWALLS, WITH FULL SURFACE INTERLOCKING STEEL SHEET PILING DRIVEN PRIOR TO EXCAVATION, AND WITH BRACING CONSISTING OF STEEL WALERS AND STRUTS, DESIGNED AND BUILT TO WITHSTAND ALL LOADS THAT MIGHT BE CAUSED BY EARTH AND WATER PRESSURES, AND TO BE RIGID, MAINTAINING SHAPE, POSITION, AND INTIMATE CONTACT WITH THE EARTH SIDEWALLS UNDER ALL CIRCUMSTANCES, AND EXCLUDING 'TRENCH BOX, JACKED SHIELD OR OTHER MOVABLE SHORING SYSTEMS.' *** GARNEY'S PROPOSED METHOD OF PROTECTING EXCAVATION SIDEWALLS APPEARS CLEARLY TO DIFFER MATERIALLY FROM THE SPECIFIED METHOD."

IT HAS BEEN OUR CONSISTENT POSITION THAT A USING ACTIVITY'S TECHNICAL CONCLUSIONS MUST BE ENTITLED TO GREAT WEIGHT, AND THUS WILL NOT BE OVERTURNED BY OUR OFFICE UNLESS SHOWN TO BE UNREASONABLE, SEE WESTINGHOUSE ELECTRIC CORPORATION, B-195561, MAY 5, 1980, 80-1 CPD 322. MOREOVER, A PROTESTER OR COMPLAINANT HAS THE BURDEN TO AFFIRMATIVELY PROVE ITS CASE. SEE RELIABLE MAINTENANCE SERVICE, INC. - REQUEST FOR RECONSIDERATION, B-185103, MAY 24, 1976, 76-1 CPD 337. GARNEY HAS NOT CHALLENGED THE EPA REGIONAL ADMINISTRATOR'S VIEW AS TO GARNEY'S PROPOSED TRENCHING METHOD. THUS, WHETHER OR NOT THE ZOKOR TUNNELING METHOD COULD BE USED EITHER UNDER THE 130-FOOT RIGHT-OF-WAY OR ANY OTHER LENGTH NOT SUBJECT TO CORPS APPROVAL, WE CANNOT CONSIDER GARNEY'S BID RESPONSIVE TO KANSAS CITY'S NEED TO INSTALL A SEWER IN THE CORPS' FLOOD CONTROL WORKS AREA; THE CORPS WOULD NOT APPROVE OF TUNNELING, AND GARNEY'S PROPOSED TRENCHING METHOD MUST BE VIEWED AS UNACCEPTABLE.

ACCORDINGLY, WE AGREE WITH THE EPA REGIONAL ADMINISTRATOR'S DECISION THAT GARNEY'S BID WAS NOT RESPONSIVE TO THE GRANTEE'S SOLICITATION. THE COMPLAINT IS DENIED.