Protest of Army Contract Award

A firm protested the Army's award of a contract for the construction of a bulk oil storage system to another company. The protester contended that, because the earthwork specifications required clarification, resolicitation was required. The invitation for bids (IFB) stated that no consideration would be given to the nature of materials required. Before bid opening, the protester orally told the Army that several earthwork provisions would require bidders to increase bid prices to cover possible extra costs resulting from the presence of unexpected materials. The Army referred the protester to information cited in the IFB containing soil boring data, which reflected that only sand, silt and gravel were present. The protester also contended that the Army's earthwork specifications rendered meaningless the general IFB differing site conditions provision which permits an equitable adjustment when latent physical conditions differ materially from those indicated in the contract. The Army received notice of the protester's protest 3 days before bid opening. The Army reported that sufficient time was not available to issue clarification and since the Army considered clarification to be unnecessary, bid opening proceeded as scheduled. GAO concluded that the earthwork specifications, which notified bidders that no consideration would be given to the nature of the materials encountered, were not consistent with the Army's stated intent to provide consideration to the differing site conditions clause if the materials encountered differed materially from the IFB soil boring data. GAO recommended that the Army revise the language of its earthwork specifications to eliminate future lack of clarity in solicitations. Accordingly, the protest was sustained. GAO, however, did not believe that termination of the awardee's contract and readvertisement would be in the best interests of the Government.