BNUMBER: B-272529
DATE: October 21, 1996
TITLE: JWK International Corporation
**********************************************************************
Matter of:JWK International Corporation
File: B-272529
Date:October 21, 1996
Keith L. Baker, Esq., and Timi E. Nickerson, Esq., Eckert, Seamans,
Cherin & Mellott, for the protester.
Christopher M. Bellomy, Esq., Department of the Navy, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Protest by sixth low bidder that five lower bids are nonresponsive on
ground that supplemental pricing information required to be submitted
with bids indicates that bidders do not intend to furnish minimum
staffing set out in invitation for bids (IFB) is denied where a
reasonable reading of the IFB shows that at least one of the
lower-priced bidder's proposed staffing is consistent with the
staffing set out in IFB.
DECISION
JWK International Corporation protests the award of a contract under
invitation for bids (IFB) No. N62467-95-B-1126, issued by the
Department of the Navy, Naval Facilities Engineering Command, for base
operations services at the agency's facility in McGregor, Texas. The
protester asserts that the five lower bids submitted in response to
the IFB are nonresponsive because each bid contains evidence, on its
face, that the bidder does not intend to comply with the IFB's
statement of work.
We deny the protest.
The IFB, issued as a small business set-aside, called for award of a
combination firm, fixed-price and indefinite quantity contract for
operations and maintenance at the facility, for a 6-month base period
with four 1-year options and a fifth, 6-month, option period.
Contract line item numbers (CLIN) 0001, 0011, 0021, 0031, 0041, and
0051 represented the fixed-price portion of the work for the base and
option periods, which is at issue here.[1] The solicitation provided
for award to the low responsive, responsible bidder on CLINs
0001-0060.
The last page of section B, the bid schedule, instructed bidders to
provide certain supplemental pricing information "in order to
facilitate the [g]overnment's evaluation of the Firm Fixed-Price
portion." Bidders had to break down their prices for CLIN 0011 (the
fixed-price portion of the first full year of performance) into 14
elements. One of these elements was startup costs; the other elements
corresponded to 13 "annexes" set out in section C of the IFB which
describe the different kinds of work required under the IFB. For each
of the annexes, as well as startup costs, bidders were to provide
estimates of labor years devoted to that portion of the work
(expressed as "full-time equivalents" (FTE)), with the associated
labor, material, and equipment costs. The IFB advised bidders that
the "grand total" for the 13 annexes and startup costs had to equal
the amount bid for CLIN 0011.
Three of the annexes listed in section C of the IFB are relevant to
the protest: annex 6 (fire protection services); annex 7 (water supply
system operation and maintenance); and annex 11 (operation and
maintenance of the electrical distribution system).
The agency received 11 bids; the protester's bid was sixth low. JWK
contends that the five lower-priced bids are nonresponsive,
specifically asserting that the supplemental pricing information
provided by the five bidders indicates that they do not intend to
furnish the minimum staffing levels set out in annexes 6, 7, and 11 of
the IFB.
A bid must be responsive to be considered for award, which means that
the bid must be an offer to perform, without exception, the exact
thing called for in the solicitation and, upon acceptance, will bind
the contractor to perform in accordance with the material terms and
conditions of the IFB. Stay, Inc., B-237073, Dec. 22, 1989, 89-2 CPD para.
586. Responsiveness is determined at the time of bid opening from the
face of the bid documents. B-G Mechanical Serv., Inc., B-265782, Dec.
27, 1995, 96-1 CPD para. 6.
Here, the agency disagrees with JWK's assertion that the staffing
levels set out in the bidders' supplemental pricing information bear
on the responsiveness of the bids. Rather, the agency contends, it
requested the supplemental pricing information solely for the purpose
of evaluating price reasonableness and not for the purpose of judging
conformance to the statement of work. We need not resolve this issue
since, even assuming that the IFB set out minimum staffing
requirements as JWK contends, at least one of the low bidders proposed
staffing sufficient to perform in accordance with those requirements.
With respect to annex 6, JWK argues that the required minimum staffing
is 21 FTEs; the record shows that the fourth low bidder, LB&B
Associates Inc., proposed 23 FTEs for annex 6. Thus, even under JWK's
interpretation of the annex 6 staffing levels, LB&B's bid is
acceptable.
With respect to annex 11, paragraph C11.6e required the contractor to
provide a duty electrician (to be available within 30 minutes of an
emergency call) and paragraph C11.6f called for a chief of the watch
(to be available on base 24 hours a day, 7 days a week). JWK contends
that this staffing translates into a minimum of 5.2 FTEs; LB&B's bid
listed 1 FTE for annex 11.
We do not agree with the protester's calculations. First, paragraph
C6.4b(5) of the statement of work for annex 6 (fire protection
services) specifically states that the dispatcher assigned to annex 6
will serve as chief of the watch "for other annexes such as security,
water, sewer, or electrical services." Thus, the chief of the watch
position in annex 11 is the same as the dispatcher position in annex
6; there is no separate FTE required for this position under annex 11.
Nor is there an FTE requirement for a duty electrician in annex 11,
since the duty electrician is required to be "on call" rather than
physically present for any specified period.[2]
With regard to annex 7 (water supply system operation and
maintenance), paragraph C7.6e set out the following staffing: a
maintenance supervisor (to be available for the "first shift," Monday
to Friday); and a laboratory technician (to be available "as
required"). An attachment to annex 7 (Technical Exhibit 7-2) refers
to another position, an operator, with no required availability
specified. JWK interprets the IFB to require 12.6 FTEs for annex 7
(three positions at 4.2 FTEs each); LB&B's bid indicated that 1 FTE
would be furnished.
While JWK argues that, based on Technical Exhibit 7-2, annex 7 should
be interpreted as establishing minimum staffing of three positions (a
maintenance supervisor; an operator; and a laboratory technician), the
protester ignores the specific minimum staffing requirements set forth
in paragraph C7.6e of the annex. That paragraph, entitled Staffing,
expressly states that the minimum staffing is a maintenance supervisor
for the first shift, Monday through Friday, with a laboratory
technician as needed; there is no mention, and no specified
availability, for the third position ("operator") listed in the
technical exhibit. Thus, we think the statement of work, at most,
establishes the minimum staffing as one FTE, the number listed in
LB&B's bid.
In sum, since LB&B's lower-priced bid offered the minimum staffing JWK
asserts was required for annex 6, as well as adequate staffing under a
reasonable interpretation of the requirements for annexes 7 and 11, we
see no basis to conclude that the bid is nonresponsive even assuming,
as JWK argues, that the IFB specified minimum required staffing
levels. In view of this conclusion, we will not consider JWK's
challenge to the responsiveness of the other bids since JWK would not
be in line for award even if its challenge to those bids were
sustained. See Bid Protest Regulations, 4 C.F.R. sec. 21.0(a) (1996);
ECS Composites, Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD para. 7.
The protest is denied.
Comptroller General
of the United States
1. CLINs 0002-0008, 0022-0028, 0032-0028, 0042-0048, and 0052-0058
contained the agency's estimates for the indefinite quantity work.
CLINs 0009, 0019, 0029, 0039, 0049, and 0059 and CLINs 0010, 0020,
0030, 0040, 0050, and 0060 were for material and equipment to support
the fixed-price work in the base and option periods.
2. In any event, the staffing listed by the low bidder---1 FTE---is
consistent with JWK's staffing estimate for the duty electrician.