B-160145, JAN. 23, 1967

B-160145, JAN. 23, 1967

TO SOUTHWEST ENGINEERING COMPANY, INC.:

IN A LETTER TO OUR OFFICE DATED SEPTEMBER 22, 1966, YOU PROTESTED THE REJECTION OF YOUR BID BY THE KANSAS CITY DISTRICT, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, AND THE AWARD OF THE CONTRACT TO THE NURRIE CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS NO. CIVENG-23 028-66-123, ISSUED ON MAY 26, 1966.

THE INVITATION CALLED FOR THE CONSTRUCTION OF TWO SEPARATE TOILET AND RECREATIONAL FACILITIES ON THE POMME DE TERRE LAKE IN MISSOURI. ONE FACILITY WAS TO BE LOCATED AT "THE BOLIVAR LANDING AREA," THE OTHER AT "THE LIGHTFOOT LANDING AREA.' YOUR BID OF $95,187 WAS LOW, AND THE SECOND LOW BID OF $97,635 WAS SUBMITTED BY THE NURRIE CONSTRUCTION COMPANY. YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE YOUR INCLUDED WITH YOUR BID A LETTER INFORMING THE CONTRACTING OFFICER AS FOLLOWS:

"WE ARE HEREWITH SUBMITTING OUR BID PROPOSAL FOR INSTALLATION AND ERECTION OF RECREATIONAL AND WATER FACILITIES AT THE BOLIVAR AND LIGHTFOOT LANDING AREAS ON POMME DE TERRE LAKE AND ARE HEREBY QUALIFYING OUR BID TO THE FOLLOWING EXTENT:

"DRAWING SHEET NO. 8 SHOWS A DRAIN PIPE SUBMERGED OUTLET DETAIL WHICH WOULD REQUIRE THE MOUNDING OF ROCKS ADEQUATE TO FURNISH A MINIMUM 1 FOOT O INCH COVER OVER THE SUBMERGED OUTLET PIPE. WE WISH TO QUALIFY OUR BID BY STATING THAT IN OUR OPINION, THIS IS AN IMPOSSIBLE SITUATION AND THE DETAILED DRAWING IS TOTALLY IMPRACTICABLE IN THAT BOTH AFFLUENT SUBMERGED DRAIN LINES EXTEND DOWNWARD AT AN ANGLE TOO STEEP TO PERMIT ANY COVERAGE AT ALL. THE ACTUAL FALL OR GRADE IN THE SUBMERGED PIPE ON EACH SITE WILL BE ELEVEN FOOT DEEP IN A DISTANCE OF APPROXIMATELY FOURTEEN FOOT SURFACE LENGTH.

"OUR BID HOWEVER, DOES INCLUDE THE PROPER INSTALLATION OF THE PIPE ACCORDING TO THE GRADE SHOWN BUT DOES NOT INCLUDE MOUNDING OF ROCK OVER THE SUBMERGED OUTLET.'

THE CORPS OF ENGINEERS CONCLUDED THAT SUCH QUALIFICATION AMOUNTED TO AN OFFER OF PERFORMANCE WHICH WAS MATERIALLY DIFFERENT FROM THAT SPECIFIED IN THE INVITATION FOR BIDS, AND REJECTED YOUR BID AS NONRESPONSIVE ON THAT BASIS.

YOU PROTEST THE REJECTION OF YOUR BID ON TWO GROUNDS: (1) THAT AN INCONSISTENCY EXISTED BETWEEN THE SLOPES AS REPRESENTED BY THE DRAWING OF THE DRAIN PIPE SUBMERGED OUTLET AND THE DRAWINGS OF THE SEWER AND TREATED EFFLUENT DRAIN PROFILES FOR BOTH CONSTRUCTION SITES, AND (2) THAT THE SEWER EFFLUENT PIPES CANNOT BE INSTALLED AT EITHER LOCATION ACCORDING TO THE DRAIN PIPE SUBMERGED OUTLET DETAIL (AS SHOWN ON SHEET NO. 8 OF THE DRAWINGS).

IN THIS CONNECTION YOU POINT OUT THAT THE "DRAIN PIPE SUBMERGED OUTLET" DETAIL SHOWS A GRADUAL SLOPE OF THE DRAIN PIPE INTO THE LAKE, AT BOTH LOCATIONS, OF APPROXIMATELY 15 FEET OF DROP TO 100 FEET HORIZONTAL. THIS WERE THE ACTUAL SLOPE OF THE LAKE BED AT THE WATER'S EDGE IN THESE LOCATIONS, YOU THINK THE SUBMERGED PIPE DETAIL WOULD HAVE BEEN PRACTICAL. HOWEVER, TWO DAYS BEFORE THE BID DATE OPENING, YOU INSPECTED BOTH CONSTRUCTION SITES AND DETERMINED THAT THE SLOPE UPON ACTUAL MEASUREMENT WAS AN 11 FOOT DROP IN A HORIZONTAL DISTANCE OF 14 FEET, OR MUCH STEEPER THAN DEPICTED BY THE DRAWINGS OF THE DRAIN PIPE SUBMERGED OUTLET. YOU CONCLUDED THAT IT WOULD BE IMPOSSIBLE TO PLACE A ROCK COVER OVER THE PIPE TO A DEPTH OF ONE FOOT AS REQUIRED BY THE IFB, AND YOU SO STATED WHEN YOU SUBMITTED YOUR BID.

THE CONTRACTING OFFICER, ON JULY 19, 1966, DETERMINED THAT YOU QUALIFIED YOUR BID BY MODIFYING THE REQUIREMENT OF THE IFB, AND THAT YOUR QUALIFICATION WENT TO THE SUBSTANCE OF THE BID AND THEREFORE COULD NOT BE DELETED OR WAIVED. IN ACCORDANCE WITH SECTION 2-404.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), YOUR BID WAS DECLARED NONRESPONSIVE AND WAS REJECTED. NONE OF THE OTHER BIDDERS EXCEPTED TO THE SPECIFICATIONS. ON JULY 26, 1966, NURRIE CONSTRUCTION COMPANY, THE NEXT LOW BIDDER, WAS AWARDED THE CONTRACT.

CONCERNING YOUR CONTENTION THAT IT WOULD BE IMPOSSIBLE TO MOUND ROCK OVER THE SUBMERGED EFFLUENT LINE AS SHOWN IN THE DETAIL DRAWINGS, THE CONTRACTING AGENCY HAS ADVISED THAT BEFORE CONSIDERATION OF AN AWARD THE ACTUAL UNDERWATER GRADES AT THE SITES WERE CHECKED BY SOUNDINGS FROM A BOAT TO SEE IF THEY CONFORMED TO THE EFFLUENT DRAIN PROFILES SHOWN ON SHEET NO. 8 OF THE DRAWINGS, AND "ESSENTIAL CONFORMANCE" WAS FOUND. SPECIFICALLY, THE UNDERWATER SLOPE AT LIGHTFOOT WAS FOUND TO BE 11 FEET VERTICAL IN 17 FEET HORIZONTAL, AS COMPARED TO 11 FEET VERTICAL IN 20 FEET HORIZONTAL SHOWN ON THE DRAWINGS. AT BOLIVAR, THE SLOPE WAS FOUND TO BE 10 FEET VERTICAL IN ABOUT 17 FEET HORIZONTAL, AS SHOWN BY THE DRAWINGS. WHILE THESE FIGURES DIFFER SUBSTANTIALLY FROM YOURS, WE MUST ACCEPT THEM AS CORRECT IN THE ABSENCE OF CONCLUSIVE PROOF THEY ARE IN ERROR. THE DESIGN WAS THEN REASSESSED FOR REASSURANCE THAT IT WAS POSSIBLE TO MOUND ROCK OVER THE SUBMERGED EFFLUENT LINE AS SHOWN ON THE DETAIL. IT WAS CONCLUDED FROM THE REASSESSMENT THAT THE MOUNDING OF ROCK OVER THE PIPE WAS BOTH POSSIBLE AND PRACTICAL. THE CORRECTNESS OF SUCH CONCLUSION WOULD APPEAR TO BE BORNE OUT BY THE FACT, AS REPORTED BY THE CONTRACTING AGENCY, THAT THE MOUNDING WAS SUCCESSFULLY ACCOMPLISHED BY THE CONTRACTOR, WHO USED SCUBA EQUIPPED DIVERS TO PLACE THE ROCKS.

UNDER THE PROVISIONS OF ASPR 2-301 (A) A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE IFB IN ORDER TO BE CONSIDERED FOR AWARD, AND UNDER THE PROVISIONS OF ASPR 2-404.2 (B) AND (D) ANY BID WHICH FAILS TO CONFORM TO THE SPECIFICATIONS OR TO THE SUBSTANTIVE REQUIREMENTS OF THE IFB MUST BE REJECTED. A REQUIREMENT IS SUBSTANTIVE IF IT AFFECTS PRICE, QUANTITY OR QUALITY, AND IT WOULD APPEAR THAT ALL OF THESE FACTORS MAY BE AFFECTED BY THE QUALIFICATION IN YOUR BID. IN VIEW THEREOF, AND SINCE THERE CAN BE NO DOUBT THAT YOU INTENDED TO DEVIATE FROM THE CONTRACT SPECIFICATIONS, AND THAT IF YOU HAD BEEN AWARDED THE CONTRACT YOU WOULD HAVE BEEN UNDER NO OBLIGATION TO MOUND ROCK OVER THE SUBMERGED PIPE OUTLET, WE MUST CONCLUDE THAT THE ACTION OF THE CONTRACTING AGENCY IN REJECTING YOUR BID WAS PROPER.

IN ADDITION TO PROTESTING THE REJECTION OF YOUR BID, YOU PROTEST THE AWARD TO NURRIE CONSTRUCTION COMPANY ON THE THEORY THAT THE CONTRACTING AGENCY KNEW BEFORE IT AWARDED THE CONTRACT THAT CHANGES IN THE LOCATION OF THE EFFLUENT LINES WOULD HAVE TO BE MADE, AND THAT THESE CHANGES WERE MADE AFTER AWARD TO THE BENEFIT OF NURRIE CONSTRUCTION COMPANY.

IN A SUPPLEMENTAL REPORT DATED DECEMBER 12, 1966, THE CORPS OF ENGINEERS EXPLAINED THAT THE CHANGES IN THE LOCATION OF THE DRAIN LINES AT BOTH THE BOLIVAR AND LIGHTFOOT LANDING AREAS WERE NOT MADE TO TAKE ADVANTAGE OF ANY LESSER SLOPE, BUT WERE NECESSARY BECAUSE OF OTHER CONDITIONS WHICH WERE NOT DISCOVERED UNTIL AFTER AWARD OF THE CONTRACT TO NURRIE CONSTRUCTION COMPANY.

THE CHANGE IN LOCATION OF THE EFFLUENT LINE AT THE LIGHTFOOT AREA WAS NECESSITATED BY A CHANGE IN LOCATION OF THE AERATION PLANT, WHICH WAS MOVED SIXTEEN FEET BECAUSE IT WAS DISCOVERED THAT THE CONTOUR OF THE LAND AT THE POINT WHERE IT WAS ORIGINALLY TO HAVE BEEN BUILT WAS INAPPROPRIATE. RELOCATION OF THE PLANT TO A POINT WHERE THE CONTOUR WAS APPROPRIATE ALSO REQUIRED THAT THE EFFLUENT LINE BE RELOCATED. A FURTHER CONSEQUENCE OF SUCH RELOCATION WAS THAT ADDITIONAL LINE HAD TO BE INSTALLED, PRESUMABLY AT AN INCREASED COST TO THE CONTRACTOR.

AT THE BOLIVAR SITE, THE AERATION PLANT WAS MOVED ABOUT EIGHTY FEET BECAUSE IT WAS DETERMINED THAT THE DROP FROM A MANHOLD ALREADY INSTALLED (SEE SHEET NO. 5 OF THE DRAWINGS) TO THE ORIGINAL LOCATION OF THE PLANT WAS INADEQUATE. THE AERATION PLANT WAS THEREFORE RELOCATED TO A POINT WHERE ADDITIONAL DROP WAS OBTAINED. SINCE THIS RESULTED IN INTERFERENCE WITH GUY WIRES OF AN EXISTING HIGH VOLTAGE POWER LINE IF THE UNDERWATER TERMINUS OF THE EFFLUENT LINE REMAINED UNCHANGED, A FIELD ADJUSTMENT TO THE NEW UNDERWATER TERMINUS WAS ACCOMPLISHED. WE ARE ADVISED THAT, WHILE SUCH RELOCATION RESULTED IN INSTALLATION OF APPROXIMATELY 80 FEET OF ADDITIONAL PIPE AND CABLE BY, AND PRESUMABLY ADDITIONAL EXPENSE TO, THE CONTRACTOR, NO ADJUSTMENT IN THE CONTRACT PRICE HAS BEEN REQUESTED OR MADE.

IT THEREFORE DOES NOT APPEAR THAT THE CHANGES TO WHICH YOU REFER WERE MADE BECAUSE OF YOUR OPINIONS AS TO HOW THE JOB WOULD HAVE TO BE DONE, NOR DOES IT APPEAR THAT SUCH CHANGES NECESSARILY RESULTED IN ANY BENEFIT TO THE CONTRACTOR. FURTHER, IT DOES NOT APPEAR THAT ANY MEASURABLE BENEFIT IN MOUNDING THE UNDERWATER TERMINALS OF THE PIPES RESULTED TO THE CONTRACTOR FROM THEIR RELOCATION, SINCE THE UNDERWATER SLOPE AT THE NEW LOCATION AT LIGHTFOOT IS 12 FEET VERTICAL IN 16 FEET HORIZONTAL, WHILE AT BOLIVAR THE SLOPE IS ESSENTIALLY THE SAME AT THE RELOCATED POINT OF ENTRY INTO THE LAKE AS IT IS AT THE ORIGINAL POINT OF ENTRY.

IN VIEW OF THE FOREGOING WE SEE NO PROPER BASIS ON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT AWARDED TO NURRIE CONSTRUCTION COMPANY, AND YOUR PROTEST MUST THEREFORE BE DENIED.