Matter of: Williams Environmental Services, Inc. File: B-250404 Date: January 29, 1993
B-250404: Jan 29, 1993
PROCUREMENT Sealed Bidding Bids Responsiveness Descriptive literature Adequacy Proposed awardee's bid was properly determined responsive where the firm did not take exception in its unsolicited descriptive literature submitted with its bid. To the solicitation's technical requirements and where the firm's unsolicited descriptive literature shows that its offered equipment will perform in accordance with the solicitation's technical requirements. Bidders were required to submit unit and extended prices and then a total aggregate price for all line items. Line item No. 0009 was for the performance of soil sampling and analysis and line item No. 0010 was for the performance of ambient air monitoring.
Matter of: Williams Environmental Services, Inc. File: B-250404 Date: January 29, 1993
PROCUREMENT Sealed Bidding Bids Responsiveness Descriptive literature Adequacy Proposed awardee's bid was properly determined responsive where the firm did not take exception in its unsolicited descriptive literature submitted with its bid, or elsewhere in its bid, to the solicitation's technical requirements and where the firm's unsolicited descriptive literature shows that its offered equipment will perform in accordance with the solicitation's technical requirements. PROCUREMENT Sealed Bidding Bids Error correction Pricing errors Line items Contracting agency may reasonably accept the apparent low bidder's bid where the bid remains low with or without correction of alleged pricing mistakes.
DECISION Williams Environmental Services, Inc. protests the proposed award of a contract to Environmental Health Research and Testing (EHRT) under invitation for bids (IFB) No. DAHA19-92-B-0021, issued by the Department of the Army for an environmental clean-up project at the Massachusetts Military Reservation, Cape Cod, Massachusetts. The protester alleges that EHRT failed to submit descriptive literature showing that its offered equipment would perform in accordance with the technical requirements in the IFB and that EHRT's low bid contains a mistake.
We deny the protest.
The IFB, issued on August 10, 1992, contemplated the award of a fixed- price/indefinite quantity contract. The bid schedule listed 10 line items, Nos. 0001 through 0010. For each line item, bidders were required to submit unit and extended prices and then a total aggregate price for all line items. Line item No. 0009 was for the performance of soil sampling and analysis and line item No. 0010 was for the performance of ambient air monitoring.
The technical specifications in the IFB required bidders to provide a mobile thermal treatment system to be used in processing contaminated soil from three study areas at the site. The IFB described the system by listing its nine components. For example, one listed component of the system was an "Air Pollution Control Device(s) (carbon adsorption [a process where gases, vapors, and other dissolved matters are absorbed by the surface of a solid, e.g., activated carbon] unit required in lieu of [an] afterburner or other thermal unit)." The IFB also listed nine types of information (catalog data, manufacturer specifications and engineering data, performance data, drawings, operations and maintenance plan, performance test protocol, stack air monitoring plan, completed equipment data sheets, and example operating log sheets) which bidders were requested to submit with their bids. The IFB, in describing the performance requirements of the system, provided numerical target clean-up levels for the treated soil for trichloroethylene, tetrachloroethylene, and petroleum hydrocarbon contaminants.
Amendment No. 0002, issued on August 21, incorporated the clause at Federal Acquisition Regulation (FAR) Sec. 52.214-21, captioned "Descriptive Literature." The clause defines descriptive literature as information (for example, cuts, illustrations, drawings, and brochures) submitted as part of a bid which is required to establish, for the purpose of evaluation and award, the significant details of the product offered as specified in the solicitation. The clause advises that descriptive literature, "required elsewhere in this solicitation," must be identified to show the items to which it applies and must be received by the time of bid opening, and cautions that the failure of the descriptive literature to show that the product offered conforms to the IFB's requirements will result in the rejection of the bid.
Eight bids were received by bid opening on September 10. EHRT, which submitted the apparent low aggregate bid of $2,649,265, furnished the following descriptive literature with its bid: a narrative providing the process description for a Thermotech Portable Soil Remediation System (25 ton/hour), process specifications and performance information for the Thermotech special Model No. 625 Soil Remediation Unit (SRU), a four-page equipment list, a diagram of the portable plant process flow, three pages of completed equipment data sheets, and manufacturer's literature and diagrams for a Calgon Carbon Vapor-Pac 10 carbon adsorption system which uses granular activated carbon to remove volatile organic compounds from air emissions and other vapors.
Based on a review of the descriptive literature initially furnished by EHRT and the descriptive literature furnished by other firms for the same equipment, and based on his personal knowledge of having evaluated the same equipment at another job site, the agency's environmental engineer concluded that EHRT's thermal treatment system would comply with the IFB specifications, assuming that air pollution emission standards were achieved during performance. The engineer did, however, express his concern with EHRT's pricing of line item Nos. 0009 and 0010 which appeared low in comparison to the other bids received. EHRT bid $21,200 for line item No. 0009 and $15,000 for line item No. 0010. In comparison, the protester, which submitted the apparent second low aggregate bid of $3,287,299, bid $254,000 for line item No. 0009 and $223,312 for line item No. 0010.
By letter dated September 15, the agency requested EHRT to review for accuracy its prices for individual line items and to verify its intended bid price. On September 16, as part of the preaward survey for EHRT, the contracting officer spoke to Army and Army Corps of Engineers project officials who reported that for three hazardous waste type projects, EHRT performed satisfactorily, demonstrated a high degree of technical competence, and had a great deal of experience. The contracting officer consulted EHRT's written bank reference and Dun and Bradstreet Report which showed the firm's good financial condition. The contracting officer also consulted other suppliers and creditors who reported that EHRT was a highly capable and competent firm with which to do business.
Finally, the contracting officer confirmed that EHRT was not listed as a debarred, ineligible, or suspended contractor. Based on this information, the contracting officer determined that EHRT was a responsible bidder.
On September 18, EHRT furnished additional descriptive literature to the agency's environmental engineer, including supplemental manufacturer and performance data, supplemental drawings, an operations and maintenance plan, a performance test protocol, and a stack air monitoring plan. After reviewing this additional descriptive literature, the engineer confirmed that EHRT's thermal treatment system would satisfy the IFB specifications. The engineer also met with EHRT's president and EHRT's director of business development regarding the firm's ability to perform the contract in light of its pricing of line item Nos. 0009 and 0010. According to the engineer's memorandum of the meeting, EHRT's corporate officials admitted that a mistake had been made in pricing line item Nos. 0009 and 0010; however, they stated that EHRT could perform at the prices submitted for those line items in accordance with the IFB specifications. EHRT explained that it has its own laboratory and owns the required testing instruments and equipment, thus enabling it to perform the necessary sampling, analysis, and monitoring with a rapid turn-around time. EHRT also stated that it wanted to perform the contract in order to establish a satisfactory performance history with this agency and that it was financially capable of performing at the prices submitted.
By letter dated September 29, EHRT confirmed and verified its prices for all line items, including line item Nos. 0009 and 0010, and its total aggregate price. Pending the resolution of this protest, the contracting officer proposes to award a contract to EHRT as the low, responsive and responsible bidder.
The protester first alleges that EHRT's bid should be rejected as nonresponsive because it is not clear from the descriptive literature initially submitted with its bid that its thermal treatment system would remove from the soil trichloroethylene and tetrachloroethylene hydrocarbon contaminants to the numerical target levels specified in the IFB. In support of its argument, the protester refers to two statements in EHRT's initially submitted descriptive literature for a Thermotech special Model 625 SRU. While the descriptive literature specifically provided that the unit would clean soil contaminated with trichloroethylene and tetrachloroethylene hydrocarbons, the descriptive literature also provided that "the unit is not designed to thermally process materials listed in [the Environmental Protection Agency (EPA) regulations. . .]." Since trichloroethylene and tetrachloroethylene are listed in the EPA regulations, the protester maintains that EHRT's bid was at best ambiguous with respect to whether its thermal treatment system would remove these contaminants from the soil to the specified target levels.
As a threshold matter, we find that the IFB did not include a valid requirement to submit descriptive literature for bid evaluation purposes. The IFB included the standard FAR clause requiring bidders to submit descriptive literature. The clause refers to "descriptive literature required elsewhere in this solicitation." The IFB listed nine types of information to be submitted with a firm's bid. This listing included a request for catalog data, drawings, test protocol, and manufacturer specifications. Although the IFB described the required thermal treatment system, the IFB did not provide any salient characteristics for the system for which submitted descriptive literature could be used to evaluate the acceptability of a particular system. See, e.g., BSC Indus., Inc., B-237299, Feb. 5, 1990, 90-1 CPD Para. 152. The FAR clause for descriptive literature operates together with other IFB requirements for descriptive literature. Since this IFB contained no other reference to the reason for the descriptive literature requirement, for example, for the evaluation of the system's compliance with material technical requirements specified in the IFB, the failure to provide such further guidance elsewhere in the IFB rendered the clause effectively meaningless. International Mailing Sys., Inc., B-246214, Feb. 25, 1992, 92-1 CPD Para. 224; Futura Sys. Inc., 70 Comp.Gen. 365 (1991), 91-1 CPD Para. 327; Tektronix, Inc.; Hewlett Packard Co., 66 Comp.Gen. 704 (1987), 87-2 CPD Para. 315. We conclude that, in this case, the descriptive literature actually furnished by bidders with their bids should be considered akin to "unsolicited" descriptive literature since it was not required to be submitted for bid evaluation purposes. Id. Despite the status of such literature as unsolicited, rejection of a bid as nonresponsive is required if the agency concludes that the bidder clearly intended to qualify its bid by including the unsolicited information or where the submitted literature reasonably creates a question about what the bid is offering. FAR Secs. 14.202-5(f), 14.202-4(g); International Mailing Sys., Inc., supra; Brown Boveri Elec., Inc., B-209338, Apr. 1, 1983, 83-1 CPD Para. 342. Here, because EHRT submitted descriptive literature with its bid, the agency had a duty to assure that this unsolicited descriptive literature did not evidence a clear intent by EHRT to qualify its bid.
Based on our review of the record, we find that EHRT did not take exception in its unsolicited descriptive literature submitted with its bid, or elsewhere in its bid, to the IFB's technical requirements. With respect to the protester's specific allegation, while it appears that EHRT's offered Thermotech special Model No. 625 SRU, by itself, would not remove from the soil trichloroethylene and tetrachloroethylene hydrocarbon contaminants, as listed in the EPA regulations, because thermal treatment of these contaminants would cause the formation of other toxic contaminants, the record shows that the agency allowed for this limitation by providing an additional treatment process in the IFB specifications, namely the use of "air pollution control device(s) (carbon adsorption unit . . . in lieu of [an] afterburner or other thermal unit)." The record shows that a carbon adsorption unit will remove the above-referenced contaminants from the soil, processed through a scrubber apparatus, to the target levels specified in the IFB.
The record shows that both EHRT and the protester, while offering different thermal treatment systems, which would not by themselves remove the contaminants, offered the same carbon adsorption unit, a Calgon Carbon Vapor-Pac 10. According to the descriptive literature initially submitted with EHRT's bid and included with the protester's bid, this unit uses adsorption on granular activated carbon to remove the referenced contaminants, considered volatile organic compounds, from air emissions and other vapors. The descriptive literature submitted by both EHRT and the protester explained that the Vapor-Pac 10 system is a transportable adsorber which contains 12,500 pounds of granular activated carbon, which once used to its maximum capacity in removing the volatile organic compounds, is replaced with fresh carbon. The protester's descriptive literature also stated that the Vapor-Pac 10 system would easily meet the air pollution emission standards, with removal efficiency at over 95 percent for volatile organic compounds and hydrocarbons.
The record shows that in determining that EHRT's bid was responsive to the IFB requirements, the agency's environmental engineer properly considered not only the descriptive literature initially submitted by EHRT, but also the more extensive descriptive literature for the same equipment submitted by the protester with its bid and the engineer's personal knowledge of the offered equipment. See, e.g., Communications Int'l, Inc., B-238810; B-238810.2, July 3, 1990, 90-2 CPD Para. 3. On this record, we conclude that the agency properly determined that EHRT's bid was responsive to the IFB requirements. The protester next argues, comparing its higher prices for line items Nos. 0009 and 0010 with EHRT's lower prices for the same line items, and based on the agency engineer's initial conversation with EHRT corporate officials regarding the firm's pricing of these line items, that EHRT's bid should be rejected because EHRT obviously made a mistake in pricing these line items and it is not clear that EHRT would remain the low priced bidder if it were given an opportunity to correct its mistake.
The record shows that EHRT corporate officials initially told the agency that mistakes had been made in pricing line items Nos. 0009 and 0010, and reported that since the firm owned its laboratory and equipment, it still would be able to perform the IFB requirements represented by these line items at the prices bid. On the otherhand, EHRT later verified in writing that its prices for these line items were accurate and it verified its total aggregate price. In response to this protest, EHRT submitted its pricing worksheets for line item Nos. 0009 and 0010 which confirmed the prices bid for these line items.
If EHRT made a mistake in pricing line item Nos. 0009 and 0010, its bid can still be accepted since it is clear that the bid, both as submitted and as intended, would remain low (EHRT's bid was low by over $638,000, while the maximum any firm bid for line item Nos. 0009 and 0010 was $538,000). Suffield Serv. Co., B-245579, Jan. 13, 1992, 92-1 CPD Para. 54. Thus, even if EHRT's prices for these two line items, in comparison to the protester's prices for the same line items, were mistaken, EHRT would remain the apparent low bidder with or without correction of the mistakes. We find the contracting officer may reasonably accept EHRT's bid.
To the extent the protester believes that EHRT will not be able to perform the required soil sampling and analysis and ambient air monitoring at the prices bid for the respective line items, this allegation involves a matter of responsibility, the affirmative determination of which we will not review absent a showing of possible fraud or bad faith on the part of procurement officials, or that definitive responsibility criteria in the solicitation may have been misapplied. Bid Protest Regulations, 4 C.F.R. Sec. 21.3(m)(5) (1992); King-Fisher Co., B-236687.2, Feb. 12, 1990, 90-1 CPD Para. 177; DOD Contracts, Inc., B-227689.2, Dec. 15, 1987, 87-2 CPD Para. 591. In this case, after conducting a preaward survey, the contracting officer concluded that EHRT was a responsible bidder. Where, as here, there is no showing of possible fraud or bad faith, or that definitive responsibility criteria have been misapplied, we have no basis to review the allegation.
Accordingly, the protest is denied.