BNUMBER:  B-271872
DATE:  July 26, 1996
TITLE:  Hercules Construction Corp.

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Matter of:Hercules Construction Corp.

File:     B-271872

Date:July 26, 1996

Gregory Rigas for the protester.
Katherine S. Nucci, Esq., Adduci, Mastriani & Schaumberg, for Volmar 
Construction, Inc., an intervenor.
Timothy A. Chenault, Esq., Department of Transportation, for the 
agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

The submission with a bid of a required work schedule which is 
inconsistent with required milestone and completion dates creates an 
ambiguity as to whether the bidder intended to be bound by the 
required dates, and such a bid is properly rejected as nonresponsive. 

DECISION

Hercules Construction Corp. protests the rejection of its bid under 
invitation for bids (IFB) No. DTCG50-96-B-643ED7, issued by the 
Department of Transportation, U.S. Coast Guard, for the construction 
of various facilities at two New York state locations (Fort Wadsworth 
and Rosebank).  The agency rejected Hercules's bid as nonresponsive 
because the completion and interim milestone dates in Hercules's 
computer-generated work schedule furnished with its bid exceeded 
construction completion and milestone dates required by the IFB.

We deny the protest.

The IFB, issued on March 11, 1996, required bidders to submit lump-sum 
prices for four base bid items (one item for Fort Wadsworth and three 
items for Rosebank) and four option items for additional work to be 
performed at Fort Wadsworth.  Award was to be made on the basis of the 
total price bid for the base bid items.  Bidders were required to 
submit with their bids a computer-generated schedule showing a summary 
of work "with a minimum of forty activities."  The "activities" were 
to include contract award (to be assumed to be made on April 18, 
1996), notice to proceed, final inspection, and final acceptance.  
Bidders were advised that a "[f]ailure to submit this schedule as 
required may make your bid non-responsive and [be] cause for rejection 
of that bid."  In another IFB clause covering commencement, 
prosecution, and completion of work, bidders were advised that Fort 
Wadsworth construction was to be completed not later than 400 calendar 
days after award and the interim milestone for that work was February 
1, 1997.  The clause also provided that the Rosebank construction was 
to be completed no later than 360 calendar days after award.  It 
further confirmed that completion dates were to be based on an April 
18, 1996, award.  The Fort Wadsworth and Rosebank projects were to be 
completed by May 23, 1997, and April 13, 1997, respectively.

Bids were opened on April 10.  Hercules submitted the low bid of 
$11,919,000. Volmar Construction, Inc. submitted the second low bid of 
$14,720,000.  Subsequent to the opening, Hercules alleged a mistake in 
bid in the amount of $2,350,000 (correction would thus increase its 
bid price to $14,269,000) and submitted worksheets to substantiate its 
allegation.  While considering the alleged mistake, the agency 
determined that Hercules's computer-generated schedule did not conform 
to the completion and interim milestone dates required in the IFB, and 
did not contain "a minimum of forty activities."  Hercules's schedule 
showed a final acceptance date of June 2, 1997, and an interim 
milestone date of May 5, 1997, for Fort Wadsworth and a final 
acceptance date of May 12, 1997, for Rosebank.  These dates were 
respectively 10, 93, and 29 days later than the dates required by the 
IFB.  Accordingly, the agency rejected Hercules's bid as 
nonresponsive. 

Hercules protests the rejection of its bid as nonresponsive and the 
refusal to permit  correction of its bid price.  It argues that its 
bid was responsive because the requirement for a work schedule did not 
relate to bid responsiveness, but rather to a bidder's responsibility.

Since a bid, to be responsive, must be an unequivocal offer to perform 
in accordance with all the material terms and conditions of the IFB 
and since an IFB delivery or completion date schedule is a material 
requirement, a bidder's unequivocal agreement to abide by the required 
schedule must be clear on the face of the bid in order for the bid to 
be deemed responsive.  See Banks Ship Rigging Corp., B-239853, Sept. 
4, 1990, 90-2 CPD  para.  181.  Responsiveness is determined at the time of 
bid opening based on all the information submitted with the bid.  
Terra Vac, Inc., B-241643, Feb. 7, 1991, 91-1 CPD  para.  140, aff'd on 
recon., B-241643.2, June 21, 1991, 91-1 CPD  para.  588.  It is irrelevant 
whether the work schedule was requested for purposes of determining 
bidder responsibility--since it was furnished with the bid and was 
inconsistent with material IFB milestone and completion requirements, 
thereby creating an ambiguity in Hercules's bid as to its intent to be 
bound by the IFB schedule, the rejection of Hercules's bid based on 
the ambiguity was proper.  Id.

Hercules also contends that, contrary to the contracting officer's 
affirmative determination of responsibility, Volmar is nonresponsible.  
However, our Office does not review an affirmative determination of 
responsibility by a contracting officer absent a showing of bad faith 
on the part of the procurement officials, or that definitive 
responsibility criteria in the solicitation may have been misapplied; 
neither showing has been made here.  4 C.F.R.  sec.  21.5(c) (1996).

The protest is denied.

Comptroller General
of the United States