B-229845, Apr 19, 1988, 88-1 CPD 382
B-229845: Apr 19, 1988
Allegation that solicitation was ambiguous is dismissed as untimely because it was not filed within 10 working days from the date that the protester should have known of the basis of protest. Sealed-bid contracts must be awarded to the government's best price advantage and where multiple awards are not prohibited. Multiple awards are to be made. Allegation that low bidder exhibited behavior which indicated a mistake in bid is untimely when it is presented in a piecemeal fashion well after other protest allegations were filed. There is no basis to conclude that the low bidder's bid contained an obvious error because the bidding strategy was permitted by the solicitation. Line item OOOlAA was designated for pontoon C.
B-229845, Apr 19, 1988, 88-1 CPD 382
PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: 1. Allegation that solicitation was ambiguous is dismissed as untimely because it was not filed within 10 working days from the date that the protester should have known of the basis of protest. PROCUREMENT - Sealed Bidding - Contract awards - Multiple/aggregate awards 2. Solicitation did not prohibit multiple awards to the same bidder. Sealed-bid contracts must be awarded to the government's best price advantage and where multiple awards are not prohibited, multiple awards are to be made. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10-day rule 3. Allegation that low bidder exhibited behavior which indicated a mistake in bid is untimely when it is presented in a piecemeal fashion well after other protest allegations were filed. PROCUREMENT - Sealed Bidding - Bids - Errors - Error substantiation 4. Although obviously erroneous bid may not be accepted even if verified by the bidder, there is no basis to conclude that the low bidder's bid contained an obvious error because the bidding strategy was permitted by the solicitation.
Detyens Shipyards, Inc:
Detyens Shipyards, Inc., protests the proposed award of separate contracts to Metal Trades, Inc. (MTI) under invitation for bids (IFB) No. N62673-88-B-0008, issued by the Supervisor of Shipbuilding, Conversion and Repair, United States Navy, Charleston, South Carolina, for repair work on two pontoons of the USS Alamos, a Navy floating drydock.
We dismiss the protest in part and deny it in part.
The IFB permitted bidders to submit separate prices for the repair work on each pontoon and both pontoons by specific line item. Line item OOOlAA was designated for pontoon C, line item 0001AB was for pontoon D, and line item OOOlAC was for both C and D. Section M-1 of the IFB advised bidders that "the government reserves the right to make award to offerors in any combination of line item 0001AA through 0001AC as may be in the best interest of the government, price and other factors considered." Also, section L-8 advised bidders that the government may accept any group of items of a bid unless the bidder qualifies the bid by specific limitation. The Navy reports that separate line items were utilized in the interest of maximizing competition because of concerns regarding the number of potential bidders that could drydock both pontoons simultaneously as contemplated by the IFB period of performance.
The Navy received six bids by the December 16, 1987, bid opening date with the following results:
MTI was the apparent low responsible bidder for line items 0001AA and 0001AB and the Navy was preparing to make multiple awards to MTI. However, Detyens protested to our Office that the Navy could not properly make multiple awards to MTI because that would render line item 0001AC meaningless. Also, Detyens argued that award to MTI would violate the contracting officer's duty to request verification of a bid containing an apparent mistake since MTI bid a higher price for performing the work on pontoons C and D under line item 0001AC than it bid separately for the work under line items 0001AA and 0001AB. In response to the protest, the Navy requested verification of MTI's bid, which the bidder provided on December 24, 1987. The Navy is withholding award until after our decision.
Detyens contends that the line item format and section M-1 required the Navy to either make multiple awards to different bidders under line items 0001AA and 0001AB or one award to the same bidder for the total work under line item 0001AC, as evidenced by plural use of the word "offerors" in section M-1. Detyens argues that such an interpretation is supported by the actions of the other bidders because each submitted lower prices under line item 0001AC than the total of their separate prices for each pontoon. Further, Detyens states that this has been the custom of bidders and is the way the Navy has interpreted the format in the past. Also, Detyens alleges that MTI's verification is not credible because at bid opening the president of MTI examined the bid prices and remarked to a Detyens representative that "it looks like we both got one," thereby indicating MTI's belief that its separate bids for line items 0001AA and 0001AB could not be combined to beat line item 0001AC.
Detyens argues that the problem in accepting MTI's bid is that it is being afforded two bites at the apple because in effect it is being allowed to submit a new lower bid on the work covered by line item 0001AC. Detyens contends that if MTI had been the lowest bidder under line item 0001AC it could have chosen to assert the interpretation advanced by Detyens.
Finally, Detyens contends that the Navy's interpretation of the IFB renders it ambiguous. However, the Navy argues that this contention is untimely and we agree. Our Bid Protest Regulations require protests of this kind to be filed not later than 10 working days after the protest was known or should have been known, whichever is earlier. See 4 C.F.R. Sec. 21.2(a)(2) (1987). Detyens should have filed the argument with its initial protest of December 18, 1987, since the alleged ambiguity became apparent from the Navy's proposed award decision. Since Detyens first raised the argument in its comments on the agency report 2 months later, we find the argument untimely.
We do not find that the IFB prohibited multiple awards to the same bidder. Section M-1 advised bidders of the government's right to make award in any combination of line items which resulted in the lowest price to the government and did not restrict award for the total work to line item 0001AC. Furthermore, section L-8 put bidders on notice that the government would accept any item or group of items of a bid, unless the bidder qualified the bid by specific limitation. Therefore, within the context of these two provisions, we are not persuaded that it is reasonable to interpret the word "offerors" to restrict the government's right to make award in any combination of line items. Here, the line item format did not require bidders bidding on both pontoons to bid the total of or discount from line items 0001AA and 0001AB for line item 0001AC. Therefore, we find the strategy adopted by other bidders and the Navy's past interpretation not pertinent because the IFB permitted bidders to utilize their own business ingenuity in responding to the specific line items and advised that only a specific limitation by the bidder could prevent the government from accepting any combination.
In this regard, sealed-bid contracts must be awarded to the government's best price advantage, whether that advantage arises from awarding a single contract or multiple contracts, and where multiple awards are not prohibited by the IFB (and would result in the lowest overall cost), multiple awards are to be made. Connie Hall Co., B-223440, July 9, 1986, 86-2 CPD Para. 52. We do not find that the terms of the IFB here prohibited multiple awards to the same bidder. See Consultants and Designers, Inc., B-186391, Apr. 29, 1977, 77-1 CPD Para. 294, where we held that a solicitation covering five separate areas of work and stipulating that two or more contracts would be awarded, did not preclude the award of both contracts to the same firm.
Although Detyens argues that MTI's bid contained an apparent mistake, we find no basis to conclude that the bid contained an obvious error. previously indicated above, the IFB did not preclude bidders from offering a higher price on line item 0001AC than the total of line items 0001AA and 0001AB. Since the bid was not obviously erroneous and was verified by MTI, and was not unreasonably low when compared to the other bid prices, the contracting officer is required to consider it as submitted. See Federal Acquisition Regulation (FAR) Sec. 14.406 3(g)(25 (FAC 84-12).
Detyens' contention that MTI was afforded two bites at the apple has no legal merit because MTI's bid was responsive to the IFB and we find the Navy's proposed award to be consistent with the terms of the IFB. While Detyens argues that MTI, after viewing the bid results, could have stated it should be awarded line item 0001AC since it covered both portions that it would be awarded, we find the Navy, under the terms of the IFB, could make separate awards under line items 0001AA and 0001AB since this results in the lowest cost. Accordingly, we do not find that Detyens would have any basis for arguing a result as proposed by Detyens.
The remaining question concerning an award to MTI is whether MTI's alleged behavior at bid opening precludes the Navy from accepting the bid. In similar cases, where there was some claim or conduct by the bidder indicating that a mistake had been made, followed by an attempt by the bidder to waive any claim of mistake in order to remain the low bidder, we held that the government could not accept an obviously erroneous bid even if verified by the bidder. See Prince Construction Co., 63 Comp.Gen. 200 (1984), 84-1 CPD Para. 159; H. Martin Construction Co., B-201352, Apr. 8, 1981, 81-1 CPD Para. 268; G.T. Murphy Inc., B-204351, Feb. 23, 1982, 82-1 CPD Para. 161. However, the Navy contends that we should not consider this argument because Detyens was aware of this information when it filed its initial protest but did not bring it to the Navy's attention until the conference on the protest. See 4 C.F.R. Sec. 21.2(a). Since our Bid Protest Regulations, 4 C..R. Sec. 21.1(c)(4), require a protest to include a detailed statement of the legal and factual grounds for the protest, we do not permit the piecemeal development of the protest and we find this allegation untimely. Conversational Voice Technologies Corp., B-224255, Feb. 17, 1987, 87-1 CPD Para. 169.
The protest is dismissed in part and denied in part.