B-175905, AUG 4, 1972

B-175905, AUG 4, 1972

BID PROTEST - ALTERNATE COMPLETION DATES - BASIS OF AWARD DENIAL OF PROTEST ON BEHALF OF THE MCKNIGHT CONSTRUCTION COMPANY AGAINST THE PROPOSED AWARD OF A CONTRACT TO DAWSON CONSTRUCTION COMPANY, INC., BY GSA, FOR THE CONSTRUCTION OF THE U.S. POST OFFICE AND FEDERAL BUILDING, AUGUSTA, GA. THE FACT THAT MCKNIGHT MAY HAVE INCURRED ADDITIONAL COSTS IN ATTENDING THE PRECONSTRUCTION CONFERENCE DOES NOT LIMIT GSA'S DISCRETION IN AWARDING THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT. THE RECORD CLEARLY INDICATES THAT GSA COULD NOT JUSTIFY THE INCREASED COST OF THE EARLIER COMPLETION DATE. ACCORDINGLY, THE PROTEST IS DENIED.

TO SANDERS, HESTER, HOLLEY, ASKIN & DYE:

WE REFER TO YOUR PROTEST ON BEHALF OF THE MCKNIGHT CONSTRUCTION COMPANY AGAINST THE GENERAL SERVICES ADMINISTRATION (GSA) PROPOSED AWARD OF A CONTRACT TO DAWSON CONSTRUCTION COMPANY, INC., UNDER PROJECT NO. 100127 FOR THE CONSTRUCTION OF THE UNITED STATES POST OFFICE AND FEDERAL BUILDING, AUGUSTA, GEORGIA.

FROM OUR REVIEW OF THE RECORD AND AFTER CONSIDERATION OF THE SUBMISSIONS OF THE INTERESTED PARTIES, WE MUST CONCLUDE THAT OUR DECISION 51 COMP. GEN. (B-175367, APRIL 14, 1972) IS DISPOSITIVE OF THE MATERIAL ISSUE RAISED BY THE PROTEST. ACCORDINGLY, THERE IS NO BASIS FOR OUR OFFICE TO INTERPOSE A LEGAL OBJECTION TO AN AWARD TO DAWSON.

THE SUBJECT INVITATION, AS DID THE INVITATION CONSIDERED IN THE CITED CASE, REQUESTED BIDS ON THE BASIS OF TWO DIFFERENT COMPLETION DATES. BIDS WERE OPENED ON MARCH 10, 1972, AND GSA'S GENERAL COUNSEL'S LETTER OF JUNE 9, 1972, REPORTS THE FOLLOWING EVALUATED RESULTS:

BASE BID ALTERNATE

(360 DAYS) (320 DAYS)

DAWSON $3,325,058 $3,475,058

MCKNIGHT 3,339,000 3,350,600

AN AWARD TO DAWSON ON THE BASIS OF THE LONGER COMPLETION SCHEDULE WOULD RESULT IN A SAVINGS OF $25,542 OVER AN AWARD TO MCKNIGHT ON THE BASIS OF THE EARLIER DELIVERY SCHEDULE. INITIALLY, GSA PROPOSED TO AWARD THE CONTRACT TO MCKNIGHT. THIS PROPOSAL WAS BASED ON LETTER DATED JANUARY 21, 1971, FROM THE ASSISTANT POSTMASTER GENERAL, BUREAU OF FACILITIES, OF THE THEN POST OFFICE DEPARTMENT, TO THE COMMISSIONER, PUBLIC BUILDINGS SERVICE (PBS), WHICH URGED PROMPT COMPLETION OF THE PROJECT. IN VIEW OF THE URGENCY OF THE POST OFFICE'S NEED, GSA'S CENTRAL OFFICE BOARD OF AWARD PANEL RECOMMENDED ON MARCH 29, 1972, THAT AN AWARD BE MADE TO MCKNIGHT.

THE ATLANTA REGIONAL OFFICE THEN ARRANGED AND HELD A PRECONSTRUCTION CONFERENCE WITH MCKNIGHT ON APRIL 14, 1972. HOWEVER, ON APRIL 12, 1972, GSA'S CENTRAL OFFICE WAS ORALLY ADVISED BY A POSTAL SERVICE OFFICIAL THAT THE REQUEST FOR EXPEDITED COMPLETION WAS BEING WITHDRAWN. THIS WAS SUBSEQUENTLY CONFIRMED BY LETTER DATED APRIL 18, 1972, FROM THE ASSISTANT POSTMASTER GENERAL, LOGISTICS, ENGINEERING AND PROGRAM MANAGEMENT, TO THE COMMISSIONER, PBS. THIS LETTER WAS NOT RECEIVED BY GSA UNTIL APRIL 21, 1972. DURING THE INTERVENING TIME GSA REASSESSED ITS POSITION IN LIGHT OF THE ANTICIPATED CONFIRMATION OF THE POSTAL SERVICE'S ADVICE AND OUR DECISION OF APRIL 14 AND CONCLUDED THAT IT COULD NOT JUSTIFY THE INCREASED COST OF AN EARLIER COMPLETION.

DURING THE CONFERENCE HELD IN OUR OFFICE ON JULY 19, 1972, QUESTION WAS RAISED AS TO WHY MCKNIGHT WAS NOT INFORMED OF GSA'S RECONSIDERATION PRIOR TO ATTENDING THE PRECONSTRUCTION CONFERENCE. THE CHRONOLOGY CONTAINED IN GSA'S GENERAL COUNSEL'S LETTER OF JULY 28, 1972, A COPY OF WHICH WAS FURNISHED YOU, INDICATES THAT THE ATLANTA REGIONAL OFFICE WAS UNAWARE OF THE CENTRAL OFFICE'S RECONSIDERATION AT THE TIME OF THE MEETING. WHILE WE, AS DOES GSA, REGRET THAT MCKNIGHT INCURRED THE EXPENSE OF ATTENDING THE CONFERENCE BECAUSE OF THIS CIRCUMSTANCE, IT DOES NOT, AS YOU RECOGNIZE, LIMIT GSA'S DISCRETION IN AWARDING THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE UNITED STATES.

TURNING NOW TO THE BASIS FOR GSA'S PROPOSED AWARD TO DAWSON, THE GENERAL COUNSEL'S LETTER OF JUNE 9, 1972, INDICATES THAT $5,639 IS THE ONLY COST ADVANTAGE THAT CAN BE FAIRLY ASSESSED IN CONSIDERING WHETHER AN AWARD TO MCKNIGHT WOULD BE MORE ADVANTAGEOUS. THIS AMOUNT REPRESENTS RENTAL SAVINGS WHICH WOULD RESULT FROM EARLIER OCCUPANCY AND IS NOT SUFFICIENT TO OFFSET THE LOW BID OF DAWSON ON THE LONGER COMPLETION SCHEDULE.

WITH RESPECT TO THE PROPRIETY OF GSA'S POSITION, THE FOLLOWING STATEMENT FROM OUR DECISION OF APRIL 14, 1972, IS PERTINENT:

"SIGNIFICANTLY, IN JUDGING THE VALUE OF EARLIER COMPLETION AS OPPOSED TO BLAKE'S LOWER PRICE, GSA HAS CONFINED ITSELF TO A CONSIDERATION OF ONLY THOSE FACTORS WHICH IT BELIEVES NOW CAN BE QUANTIFIED WITH REASONABLE CERTAINTY.

"RECOGNIZING THAT THE SELECTION OF THE ULTIMATE AWARDEE INVOLVES A CONSIDERABLE DEGREE OF DISCRETION, WE CANNOT SAY THAT GSA'S POSITION CONSTITUTES AN ABUSE OF DISCRETION. GSA'S APPROACH TO THE SELECTION - THAT IS, ITS UNWILLINGNESS TO RELY ON COST FACTORS THAT CANNOT BE DETERMINED WITH REASONABLE CERTAINTY - GENERALLY COMPORTS WITH OUR VIEW. 50 COMP. GEN., SUPRA; 47 ID. 233 (1967); 45 ID. 59 (1965); ID. 433 (1966); 36 ID. 380 (1956); AND 35 ID. 282 (1955)."

INSOFAR AS YOUR OTHER CONTENTIONS ARE CONCERNED, WE BELIEVE THAT GSA'S GENERAL COUNSEL'S LETTERS OF JUNE 9 AND JULY 28 CONSTITUTE, IN OUR OPINION, AN ADEQUATE REPLY.

ACCORDINGLY, YOUR PROTEST IS DENIED.