BNUMBER: B-270162
DATE: February 1, 1996
TITLE: Applicators, Inc.
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Matter of:Applicators, Inc.
File: B-270162
Date: February 1, 1996
Joseph H. Kasimer, Esq., Kasimer & Ittig, for the protester.
Christopher M. Kerns for Fort Myer Construction Corporation, the
intervenor.
Gregory H. Petkoff, Esq., and Jean M. Redzikowski, Esq., Department of
the Air Force, for the agency.
Henry J. Gorczycki, Esq., and Guy R. Pietrovito, Esq., Office of the
General Counsel, GAO, participated in the preparation of the
decision., for the protester.
DIGEST
Award to bidder submitting the lowest base bid is proper, even though
that bid is not the lowest aggregate bid inclusive of an additive
item, where the available funds are sufficient to cover only the base
bid.
DECISION
Applicators, Inc. protests the award of a contract to Fort Myer
Construction Corporation under invitation for bids (IFB) No.
FA4416-95-B-A063, issued by the Department of the Air Force for the
construction of a parking lot and drainage for Hangar 11 at Andrews
Air Force Base, Maryland.
We deny the protest.
The IFB bid schedule, as amended, sought bid prices for contract line
items numbers (CLIN) 0001 and 0002--identified as the base bid for the
construction of the parking lot--and for CLINs 0003AA, 0003AB, and
0004--which together are identified as an additive item for
construction of drainage. The IFB incorporated by reference the
provision at Defense Federal Acquisition Regulation Supplement (DFARS) sec.
252.236-7007, "Additive or Deductive Items (Dec 1991)," which states
in pertinent part:
"(a) The low offeror and the items to be awarded shall be
determined as follows--
(1) Prior to the opening of bids, the Government will
determine the amount of funds available for the project.
(2) The low offeror shall be the [o]fferor that--
(i) Is otherwise eligible for award; and
(ii) Offers the lowest aggregate amount for the first or
base bid item, plus or minus (in the order stated in the
list of priorities in the bid schedule) those additive or
deductive items that provide the most features within the
funds determined available.
(3) The [c]ontracting [o]fficer shall evaluate all bids on the
basis of the same additive or deductive items.
(i) If adding another item from the bid schedule list of
priorities would make the award exceed the available funds
for all offerors, the [c]ontracting [o]fficer will skip that
item and go to the next item from the bid schedule of
priorities; and
(ii) Add that next item if an award may be made that
includes that item and is within the available funds."
Funding in the amount of $658,000 was budgeted for the entire project.
Bids were received from five bidders. Fort Myer submitted the lowest
base bid of $644,170, while Applicators's base bid of $722,840 was
next lowest. Considering the additive item, Applicators submitted the
lowest aggregate bid of $1,247,089; Fort Myer's aggregate bid of
$1,258,320 was next lowest. The Air Force advised Applicators at bid
opening that it was the apparent low bidder based on the aggregate bid
prices.
Upon subsequent review, the Air Force determined that all of the
aggregate bid prices exceeded the budgeted funding amount of $658,000.
Since funding available for the procurement was insufficient to cover
both the base bid and additive item, the Air Force determined that
award would be made only for the base bid. As noted above, Fort Myer
submitted the low base bid.
Prior to award but subsequent to bid opening, the Air Force learned
that additional funds were available for the procurement which
increased the funding available to $1,168,470. The Air Force
determined that the increased funding was still insufficient to allow
award of the entire additive item; however, the agency determined that
a portion of the additive item (CLIN 0003AA) could be awarded within
the funding amount. Considering the bidder's prices for CLIN 0003AA,
Fort Myer's bid of $926,170 remained low, while Applicators's bid of
$1,007,506 was second low. The Air Force awarded a contract for the
base bid and CLIN 0003AA to Fort Myer. This protest followed.
Applicators argues that the agency did not determine the amount of
funds available for the project prior to bid opening, as required by
DFARS sec. 252.236-7007, and that the agency improperly split the
additive item after bid opening. Applicators contends that it should
have received the award upon the basis of its low aggregate bid price.
In response to the protest, the Air Force agrees that it incorrectly
split the bid's additive item. The Air Force has informed us that it
will terminate the work associated with CLIN 0003AA from the contract
to Fort Myer and resolicit for the drainage work. Applicators has not
protested this action; thus, the remaining issue for our review is
whether the agency's award selection should have been based on the
base bids only or the aggregate bids inclusive of the entire additive
item.
The IFB provided that the low bidder would be determined using the
available funding amount as the upper limit for determining whether a
bid price may be qualified for award; specifically, the low bid is the
lowest aggregate bid price that includes the base bid and only those
additive items that can be added to the base bid and still be within
the funding limitation. DFARS sec. 252.236-7007(a); J.C.N. Constr. Co.,
Inc., B-250815, Feb. 23, 1993, 93-1 CPD para. 166; see Utley-James, Inc.,
B-198406, June 16, 1980, 80-1 CPD para. 417 (base bid excluding all
additive items is the basis for determining low bid where all bids
exceed available funding). Here, all bids inclusive of the additive
item exceed the available funding. The additive item thus cannot be
used to determine the low bid. Since Fort Myer's base bid, which was
below the funding limit, was the lowest base bid submitted, Fort Myer
was the low bidder and the award on that basis is proper. See J.C.N.
Constr. Co., Inc., supra.
In response to the protester's allegation that the funding limit was
not determined prior to bid opening, the agency provided
contemporaneous documentation from the contract file showing that the
amount of $658,000 was budgeted prior to the issuance of the IFB. The
protester received a copy of this document and has not challenged it.
The record thus shows that the Air Force properly determined the
amount of funding available for this project prior to bid opening
consistent with the terms of the provision at DFARS sec.
252.236-7007(a)(1). See Gartrell Constr., Inc., U.S. Floors, Inc.,
B-237032; B-237032.2, Jan. 11, 1990, 90-1 CPD para. 46; Sammy Garrison
Constr. Co., Inc., B-215453, Nov. 21, 1984, 84-2 CPD para. 545.
The protest is denied.
Comptroller General
of the United States