Matter of: Lathan Construction Corporation File: B-250487 Date: February 5, 1993

PROCUREMENT Sealed Bidding Bids Responsiveness Terms Compliance Under the invitation for bids for a construction project, submission of a document captioned "CONTRACTOR'S QUALIFICATIONS AND EXCLUSIONS"--that excluded certain fees from the prices set out in the accompanying sealed bid-renders the bid nonresponsive, since these exceptions limited the bidder's liability to obtain permits and pay testing, inspection and certification fees, which are the bidder's responsibility.

Attorneys

DECISION Lathan Construction Corporation protests the rejection of its bid as nonresponsive and the award of a contract to Seacoast Constructors & Consultants, Inc., under invitation for bids (IFB) No. N62467-90-B-0746, issued by the Department of the Navy for replacement of the Chapel/ R.E. Building at the Naval Training Center, Orlando, Florida.

We deny the protest.

The IFB, issued on July 2, 1992, required bidders to state prices covering "the entire work complete in accordance with the drawing and specifications" for the basic work and two additive items. The solicitation incorporated the provision at Federal Acquisition Regulation (FAR) Sec. 52.236-7, Permits and Responsibilities, and also specifically required the contractor to obtain all required permits, save for a storm water drainage permit that the government would obtain. Under the IFB, the contractor was also required to perform all required field sampling and testing, inspect all work, and report the results to the Navy on the Quality Control Daily Report. In this regard, the IFB expressly stated that the contractor was "responsible to perform quality control inspections of the work in progress, and to submit certifications to the applicable regulatory agency," and to establish a contractor inspection system, including a plan that names "testing laboratories, architects, or consulting engineers that will be employed and a description of the services they will provide."

At the August 6, 1992, bid opening, Lathan submitted the low bid of $1,983,198 while Seacoast submitted a bid of $2,181,000.

Lathan included in its bid a document captioned "CONTRACTOR'S QUALIFICATIONS AND EXCLUSIONS" that excluded certain fees from the prices set out in the protester's sealed bid. Lathan's bid referenced the document as follows:

"BID ITEM #1: $ 1,899,000 * BID ITEM #2: 45,080 * BID ITEM #3: 39,118 * * See Qualifications and Exclusions."

The referenced document reads, in part, as follows:

"Lathan Construction Corporation has the following qualifications and exclusions to their base bid for the above project.

1.No building permit, impact, utility connection, temporary utility connection, or other governmental fees which may be applicable are included in our Total Bid Item Prices.

3.We exclude engineering fees, testing, or engineering inspection fees and certifications."

The agency reviewed Lathan's bid and concluded that Lathan's exclusions imposed conditions that effectively modified the IFB's requirements for permits, testing and inspections, and, consequently, rendered Lathan's bid nonresponsive. On September 15, the agency rejected Lathan's bid as nonresponsive and awarded the contract to Seacoast, the second low bidder. This protest followed.

Initially, Lathan stated that its "Qualifications and Exclusions" statement is a standard clause that Lathan uses on all its bid work. Lathan contended that since the provision "in this case, does not affect our price," Lathan should be allowed to delete the provision and receive the award, because doing so will save the government money. Later, Lathan argued that its inclusion of the clause was an apparent mistake and that the agency was required to advise Lathan of the mistake under FAR Sec. 14.406-1 (FAC 90-5) (requiring agency to seek bidder verification of apparent mistakes in bids). In its comments on the agency report, Lathan abandons its mistake contention and admits that it intentionally included at least part of the "Qualifications and Exclusions" statement because the various IFB provisions regarding permits, inspections, certifications, and testing are ambiguous and Lathan could not discern "what inspections, certifications, and testing is required."

All bidders must compete for sealed bid contracts on a common basis. No individual bidder can reserve rights or immunities that are not extended to all bidders by the conditions and specifications advertised in the IFB. See Parsons Precision Prods., Inc., B-249940, Dec. 22, 1992, 92-2 CPD Para. __; Free-Flow Packaging Corp., B-204482, Feb. 23, 1982, 82-1 CPD Para. 162. Therefore, in order to be responsive, a bid must contain an unequivocal offer to provide the requested items in total conformance with the material terms of the solicitation, and any bid which imposes conditions that would modify material requirements of the solicitation must be rejected as nonresponsive. Bishop Contractors, Inc., B-246526, Dec. 17, 1991, 91-2 CPD Para. 555. A material deviation is one which affects, in more than a trivial way, the price, quality, or quantity of goods or services offered. Aluminum Co. of Am., 71 Comp.Gen. 245 (1992), 92-1 CPD Para. 184. A bid which is nonresponsive on its face may not be converted into a responsive bid by post-bid opening clarifications or corrections. Propper Mfg. Co., Inc., B-245366, Dec. 30, 1991, 92-1 CPD Para. 14; Buckeye Pacific Corp., B-212183, Aug. 30, 1983, 83-2 CPD Para. 282.

In our view, the Navy correctly rejected Lathan's bid as nonresponsive because (1) the IFB requires firm fixed prices for the stated work; (2) the work includes obtaining permits and testing, inspections and certifications; and (3) Lathan ultimately admits that it intentionally included the qualifications regarding its liability to pay these costs because it assertedly could not tell what the IFB required. Where, as here, there is substantial doubt as to whether a bidder, upon award, could be required to perform all material requirements specified in the IFB, the integrity of the competitive bidding system requires the rejection of the bid as nonresponsive. Bishop Contractors, Inc., supra. Since Lathan's bid did not bind it to obtain all required permits (other than storm drainage sewer permit the agency would acquire) or to pay required engineering fees for testing, inspection or certification, the Navy properly rejected Lathan's bid as nonresponsive. Id.; Southwest Marine, Inc., B-247639, May 12, 1992, 92-1 CPD Para. 442.

The protest is denied.