BNUMBER:  B-262071.2
DATE:  January 31, 1996
TITLE:  Harvey Honore Construction Company, Inc.

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Matter of:Harvey Honore Construction Company, Inc.

File:     B-262071.2

Date:     January 31, 1996

James F. Nagle, Esq., Oles, Morrison & Rinker, for the protester.
Lester Edelman, Esq., and Brian R. Kennedy, Esq., Department of the 
Army, for the agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid that acknowledges all amendments to an invitation for bids (IFB), 
but which contains only the original version of the bid schedule, 
which was modified by an amendment to increase the estimated quantity 
of dirt to be excavated, is nonresponsive because the bid is ambiguous 
regarding whether the bidder intends to be bound to the original or 
amended estimate.

DECISION

Harvey Honore Construction Company, Inc. (Honore) protests the Corps 
of Engineers' rejection of its bid submitted in response to invitation 
for bids (IFB)
No. DACW29-95-B-0051 as nonresponsive.  We deny the protest.

Issued on April 27, 1995, the IFB solicited bids for constructing 8 
miles of hurricane protection levee.  Among other things, the 
contractor will be required to clear the construction area and to 
dispose of the debris.  The contractor will also be required to 
excavate and transport large quantities of dirt for use as fill in 
constructing the levee and to dispose of excavated material that is 
unsuitable for use.  Five bids were received by the June 14 bid 
opening.  Honore's bid of $4,155,250 was the lowest bid; Dragon 
Limited's bid of $4,651,500 was the second lowest; the government 
estimate was $4,160,011.  

By letter of June 19, Honore notified the contracting officer that it 
had made a mistake regarding the extended price of one line item in 
its bid.  Honore explained that its bid erroneously included the IFB's 
original schedule instead of the revised schedule provided with 
amendment 0002.  For line item 0003, Embankment, Semicompacted Fill, 
the original bid schedule required both a unit price per cubic yard of 
material and an extended price based upon an estimated quantity of 
290,000 cubic yards.  Thus, Honore's bid contained a unit price of 
$8.67 per cubic yard and an extended price of $2,514,300 for this line 
item.  However, amendment 0002 changed the estimated quantity for line 
item 0003 to 320,000 cubic yards, an increase of 30,000 cubic yards.  
Honore asked permission to correct the mistake by increasing its 
extended price for line item 0003 by $260,100 (30,000 additional cubic 
yards of fill times its original bid price of $8.67 per cubic yard).  
The correction would increase Honore's total bid price to $4,415,350.   

Initially, the contracting officer recommended that the Corps' 
Division Office allow Honore to withdraw its bid because, while there 
was sufficient evidence that the bid was mistaken, there was no 
convincing evidence that Honore's unit price of $8.67 was its intended 
price for the greater quantity of fill represented by amendment 0002.  
Subsequently, after discussions within the Corps, the contracting 
officer determined that Honore's bid was nonresponsive because it was 
ambiguous regarding whether the firm was committed to excavating and 
using only the original estimated quantity of 290,000 cubic yards or 
the amended quantity of 320,000 cubic yards in building the levee.  
Honore protested to our Office and the agency reports that it will not 
award the contract until the protest is resolved.  

Honore argues that, despite including the original bid schedule, its 
bid was responsive.  Honore states that its bid specifically 
acknowledged that Honore had received amendment 0002 and thus 
acknowledged that the firm was aware of and would be bound by the 
amendment, including the increase in the estimated amount of fill for 
line item 0003.  Honore points out that the quantities in both the 
original and amended bid schedule were merely estimates of the amount 
of fill, that the difference between the original and amended estimate 
for line item 0003 was only about 10 percent, and that the contractor 
will be required to perform all work necessary to complete the entire 
levee project regardless of the actual amount of fill required.  
Consequently, Honore contends that, since the IFB requires and its bid 
unequivocally offers to perform all of the work necessary to complete 
the levee project, the bid is responsive.  

The Corps contends that the bid is ambiguous regarding how much dirt 
Honore is committed to excavating and using as fill in performing line 
item 0003.  Because Honore acknowledged the amendment, the Corps 
believes that Honore might have intended to commit to using the larger 
amount of dirt (320,000 cubic yards) as fill; however, because Honore 
set forth its prices on the original bid schedule, the Corps believes 
that the bid only commits Honore to using the smaller amount of dirt 
(290,000 cubic yards) as fill.  The Corps points out that under the 
IFB's Variation in Estimated Quantities (VEQ) clause, Federal 
Acquisition Regulation  sec.  52.212-11, if the actual quantity of the 
semicompacted fill required in line item 0003 is 15 percent more than 
the estimated quantity, Honore would be entitled to an equitable 
adjustment in the contract price.  Thus, if Honore is committed to the 
original estimated quantity of only 290,000 cubic yards, then Honore 
would be entitled to an equitable adjustment if the actual quantity of 
fill exceeds 333,500 cubic yards.  However, if Honore is committed to 
the amended estimated quantity of 320,000 cubic yards, then Honore 
would be entitled to an equitable adjustment only if the actual 
quantity of fill exceeds 368,000 cubic yards.  

Generally, where a bidder does not submit its price on a revised bid 
schedule listing additional work, but instead submits its bid on the 
original schedule, the mere acknowledgment of the amendment containing 
the revised bid schedule is not sufficient to bind a bidder to perform 
the additional work because it is not clear that the bidder has 
committed itself to perform the extra work for the price set forth in 
the bid.  See Penn Perry, Inc., B-241777, Mar. 1, 1991, 91-1 CPD  para.  
235, and cases cited.  Application of that rule leads us to the 
conclusion that the Corps properly found Honore's bid to be 
nonresponsive.

Amendment 0002 added 30,000 cubic yards to the estimate of fill that 
was to be excavated by the contractor, and, while Honore acknowledged 
the amendment, the bid failed to include either a unit or extended 
price for the increased quantity.  It is thus not clear from the face 
of Honore's bid whether Honore intended to bid based upon the greater 
estimate.  Thus, even though under this solicitation Honore would be 
required to complete the entire levee project if awarded the contract, 
the Corps correctly points out that the estimated quantity is critical 
for determining when an equitable adjustment in price or an extension 
of time is warranted under the IFB's VEQ clause.  Since it is not 
clear from the bid whether Honore intended to be committed to the 
amendment's larger estimate or the original schedule's lesser estimate 
for this purpose, we can only conclude that on its face Honore's bid 
is not a firm commitment to what the IFB as amended envisions as the 
legal relationship between the parties under the VEQ clause and 
therefore is nonresponsive.  To the extent that Honore now contends 
that its stated unit price for the original estimated quantity 
represents its unit price for the amended estimated quantity and that 
it intends to be bound to the greater quantity estimate for the 
purpose of equitable adjustment claims under the VEQ clause, post-bid 
opening explanations may not be used to make a facially nonresponsive 
bid responsive.  See Environmental Health Research & Testing, Inc., 
B-246601, Mar. 10, 1992, 92-1 CPD  para.  274. 

The protest is denied.

Comptroller General
of the United States