BNUMBER: B-270125
DATE: January 18, 1996
TITLE: Southern Maryland Restoration, Inc.
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Matter of:Southern Maryland Restoration, Inc.
File: B-270125
Date: January 18, 1996
Andres Santos for the protester.
Douglas L. Patin, Esq., Spriggs & Hollingsworth, for Barefoot &
Company, Inc., an interested party.
J.J. Cox, Esq., and Madeline Shay, Esq., Department of the Army, for
the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Post-award protest by apparent low bidder whose bid was rejected and
who verified bid price by asserting that the solicitation did not
require removal of lead-based paint from wooden windows to be repaired
or replaced is denied since protester's interpretation would not give
effect to the solicitation's requirement, when read as a whole, for
the removal of lead-based paint from these wooden windows.
DECISION
Southern Maryland Restoration, Inc. (SMR) protests the award of a
contract to Barefoot & Company, Inc. under invitation for bids (IFB)
No. DACA31-95-B-0047, issued by the Army Corps of Engineers, Baltimore
District, for window and pointing requirements at Fort Belvoir,
Virginia. The protester contends that the Army improperly rejected
its apparent low bid.
We deny the protest.
The IFB anticipated award of a fixed-price requirements contract for
these services, to be performed over 1 base year with up to 2 option
years. The bid schedule advised prospective bidders that the
contractor was to provide all plant, labor, materials, and equipment
necessary to perform the work in accordance with contract
specifications, and that unit prices were to encompass all elements of
performance to be accomplished under each line item.
Contract line item No. (CLIN) 0001, "Repair of Window Unit," required
the contractor to repair 1,267 window units over the 3-year contract
period. The description under this CLIN stated that "[r]epair of wood
window shall be in accordance with referenced [construction
specification] sections and include but shall not be limited to: . .
. paint removal . . . ." One of the construction specification
sections referenced under this CLIN was entitled "Lead-Based Paint
(LBP) Abatement and Disposal." This section listed general lead-based
paint abatement and disposal requirements, such as submittals, quality
assurance, safety and health regulatory requirements, and equipment
and materials, as well as requirements related to the actual execution
of the work.[1]
Bid opening was on May 3, 1995. SMR submitted the low bid of
$997,939, which was approximately 55 percent below Barefoot's next low
bid of $2,236,720,[2] and 70 percent below the government estimate of
$3,307,391. By letter of May 9, the Army asked SMR to review and
verify its bid in light of these disparities. SMR verified its bid
the next day, stating that its unit prices were "in compliance with
[its] interpretation of the plain language of the specifications."
The Army was concerned that SMR may not have understood the
requirements and met with the firm on June 9 to explore this
possibility. The Army specifically asked SMR's representatives what
it meant when it stated that it had complied with its interpretation
of the specifications. SMR asserted that its bid had not included any
amount for removal of lead-based paint because it believed that the
specifications did not state that the windows contained lead-based
paint. The Army disagreed with this interpretation, and advised the
bidder that it could claim a mistake in bid.
By letter dated June 16, SMR again verified its bid without claiming a
mistake, and reasserted its view that the solicitation did not require
bidders to include the costs for lead abatement for all of the windows
in the schedule. SMR pointed to one paragraph within the lead-based
paint section of the construction specification which stated that "[a]
space by space inspection shall be conducted with the contracting
officer. A written inventory shall be prepared that identifies the
LBP containing surfaces." SMR queried why this inventory would be
necessary if all windows are known to require lead-based paint
abatement procedures.
The contracting officer asked the District's legal counsel to review
the IFB and provide advice concerning the presence of any ambiguities.
Legal counsel advised that the Army could reject SMR's bid under
Federal Acquisition Regulation (FAR)
sec. 14.406-3(g)(5)(ii)[3] because the firm had misinterpreted the
solicitation's requirements regarding lead-based paint abatement.
However, she stated that the IFB contained other ambiguities
associated with this section of the construction specification, and
recommended that the solicitation be canceled. The contracting
officer did so on June 29.
Barefoot subsequently filed a protest in this Office, arguing that the
Army did not have a compelling reason to cancel the solicitation in
accordance with FAR sec. 14.404-1(a)(1). Barefoot asserted that the Army
erroneously determined that the IFB contained ambiguous specifications
or that, to the extent the specifications were ambiguous, they did not
materially affect the pricing.
The Army submitted its report on August 10, asking our Office to deny
the protest based upon its view that the IFB contained the ambiguities
identified by its legal counsel. In the meantime, the Army reissued
the requirement under IFB
No. DACA31-95-B-0136, with the lead-based paint specifications
slightly revised. On August 28, Barefoot filed its comments in this
matter, in which it disputed the ambiguities alleged to exist, and
maintained that even if these ambiguities did exist, they were not
material. On September 7, this Office asked the Army to respond to
Barefoot's specific comments. The Army notified us on September 14
that it had reviewed the file in light of Barefoot's comments and
determined that, based upon a reading of the solicitation as a whole,
the apparent ambiguities would not have prejudiced any bidders. The
Army stated that it intended to reinstate the original IFB, reject
SMR's bid, cancel the replacement IFB, and award the contract to
Barefoot. Barefoot subsequently withdrew its protest, and the Army
carried out its proposed corrective action.
SMR contends that its interpretation of the solicitation as not
requiring the contractor to include a price for lead-based paint
removal is correct, and that it should have received the award as the
low bidder.
Where, as here, a dispute exists as to the meaning of a solicitation
provision, our Office will resolve the matter by reading the
solicitation as a whole and in a manner that gives effect to all of
its provisions. Martin Contracting, B-241229.2, Feb. 6, 1991, 91-1
CPD para. 121. Applying this standard here, we find that SMR's
interpretation is not a reasonable one and that the contracting
officer's rejection of the bid was proper.
As noted above, the bid schedule's descriptions for CLIN Nos. 0001 and
0002 require paint removal and reference the lead-based paint
abatement and disposal section of the construction specification. In
addition, paragraph 3.7 of the general statement of work for this
solicitation specifically states that "[t]he removal of lead paint is
in the scope of work of this project." When these provisions are read
together, it is clear that performance of these CLINs requires the
removal of lead-based paint from the specified 1,326 window units.
The passage upon which SMR's interpretation relies is found in the
part of the lead-based paint abatement and disposal specification
which describes the submittals required of the contractor. Among
other things,
"[a] space-by-space inspection shall be conducted with the
contracting officer. A written inventory shall be prepared that
identifies the LBP containing surfaces. The Government's LBP
Management Plan will be the basis of the inventory. Areas and
materials identified as containing LBP shall be treated unless
the Contractor provides analytical evidence stating that the
materials are not contaminated with LBP. . . ."
Pointing to this passage, SMR argues that the scope of the work under
CLIN No. 0001
"excludes lead-based paint removal procedures as described
under [the lead-based paint abatement and disposal specification]
since the amount of this removal, if any, will be determined by
the contracting officer and contractor by survey and testing. The
unit
price . . . is restricted to those items that are identifiable
from the
window details provided in the specifications . . . ."
Since this interpretation plainly "reads out" of the solicitation the
CLIN's reference to the lead-based paint abatement and disposal
specification and the general statement of work's instruction
concerning lead-based paint, it does not give full effect to the
Army's obvious intent and is thus unreasonable. Moreover, when the
solicitation is read as a whole, the passage relied upon by SMR is
fully consistent with the provisions the firm would have us ignore.
The inventory is necessary to identify the "surfaces," "areas," and
materials" containing lead-based paint, and the lead-based paint
management plan, referenced in this passage, requires the contractor
to identify the components containing lead-based paint and abatement
methods for such components. The "Repair to Existing Wood Windows"
specifications, also referenced in the CLIN description, list these
components as interior stops, upper sashes, transoms, jambs, sills,
and trim. Thus, the solicitation anticipates that different
components within a given window unit may or may not contain
lead-based paint, and asks the contractor to conduct an inventory
prior to performance in order to identify these components. Such
identification is necessary for the agency to properly complete the
certification of final cleaning and visual inspection required under
the lead-based paint abatement and removal specification.
Accordingly, since SMR made it very clear that it did not bid on the
basis of removing and disposing of lead-based paint, its bid was
properly rejected pursuant to FAR sec. 14.406-3(g)(5). Martin
Contracting, supra; Kumar Mechanical Inc., B-240433, Nov. 13, 1990,
90-2 CPD para. 391.
To the extent that SMR contends that the Army should have specifically
identified the surfaces containing lead-based paint prior to bid
opening, or that the specifications were otherwise defective, the
protest is untimely. A protest of apparent solicitation improprieties
must be filed prior to the time established for bid opening. Bid
Protest Regulations, sec. 21.2(a)(1), 60 Fed. Reg. 40,737, 40,740 (1995)
(to be codified at 4 C.F.R. sec. 21.2(a)(1) (1996)).
The protest is denied.
Comptroller General
of the United States
1. CLIN No. 0002, "Replacement of Window Unit," also required paint
removal and referenced the lead-based paint abatement and disposal
section of the construction specification.
2. The remaining three bids were in the amounts of $2,608,933,
$2,933,185, and $3,538,737.
3. This section, now found at FAR sec. 14.407-3(g)(5), provides for the
rejection of an obviously erroneous bid if the price is far out of
line with the amounts of other bids received or if it would be unfair
to the bidder or the other competitors.