BNUMBER:  B-274203
DATE:  November 5, 1996
TITLE:  Sundt Corporation

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Matter of:Sundt Corporation

File:     B-274203

Date:November 5, 1996

Henry M. Moore, Esq., Shumate, Kraftson & Sparrow, P.C., and Richard 
D. 
Corona, Esq., Corona & Balistreri, for the protester.
Davide Golia, Esq., Marks & Golia, LLP, for Daley 
Corporation-California Commercial Asphalt Corporation, an intervenor.
Frank K. Kotarski, Esq., Christopher M. Bellomy, Esq., and George N. 
Brezna, Esq., Department of the Navy, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where bidder acknowledges solicitation amendment changing the minimum 
bid acceptance period from 90 to 120 calendar days, but inserts 90 in 
the bid form blank for proposing an acceptance period, the bid is 
ambiguous as to the offered bid acceptance period, a material 
solicitation requirement, and is therefore nonresponsive.

DECISION

Sundt Corporation protests the rejection of its bid as nonresponsive 
under invitation for bids (IFB) No. 68711-94-B-1587, issued by the 
Department of the Navy for certain construction at the Marine Corps 
Air Station at Miramar, California.

We deny the protest.

The Navy issued the IFB on July 1, 1996, with a minimum bid acceptance 
period of 90 calendar days.  Amendment No. 0001, issued July 18, 
changed, among other things, the minimum bid acceptance period to 120 
calendar days.  Bid opening was on August 1, and Sundt was the low 
bidder.  In its bid, Sundt inserted 90 days in the blank provided on 
Standard Form (SF) 1442 as its bid acceptance period and included an 
acknowledgment of the amendment that changed the minimum bid 
acceptance period to 120 days.

The Navy, while recognizing that Sundt had acknowledged amendment No. 
0001,  rejected Sundt's bid as nonresponsive because it failed to 
offer the required 120-day  bid acceptance period.  The Navy, relying 
on our decision John P. Ingram, Jr. & Assocs., Inc., B-250548, Feb. 9, 
1993, 93-1 CPD  para.  117, maintains that one reasonable interpretation is 
that Sundt offered a 90-day bid acceptance period, and that at best, 
Sundt's bid was ambiguous. 

Sundt asserts that the Ingram decision is inapplicable here because 
Sundt not only acknowledged the amendment changing the bid acceptance 
period on the unrevised SF 1442, but it included in its offer the 
actual amendment itself, executed by its authorized agent.  Sundt 
cites Walsky Constr. Co., et al., B-216571 et al., 
May 17, 1985, 85-1 CPD  para.  562 to support its position that 
acknowledgment of the amendment clearly evidenced its intent to offer 
the required 120-day bid acceptance period, and its bid was therefore 
responsive.  

We believe the protester's reliance on the Walsky decision is 
misplaced and that the Ingram decision is controlling here.  In 
Walsky, the agency erroneously inserted "10" in the bid acceptance 
period blank in the solicitation which is normally to be completed by 
the bidder.  This resulted in an obvious discrepancy with another 
solicitation provision stating that bids offering less than 30 days 
for acceptance would be rejected.  The agency then issued an amendment 
changing the bid acceptance period to 60 days.  This amendment was 
acknowledged by the low bidder, but the bid was submitted on the 
original incorrect form.  We found that the bid was not ambiguous, and 
that it was reasonable to assume that because the low bidder 
acknowledged the amendment, it intended to comply with the amended 
60-day bid acceptance period requirement, and the use of the unamended 
form was merely an oversight.  

In the present case, as in Ingram, the bidder acknowledged the 
amendment extending the bid acceptance period to 120 days, but also 
inserted the number 90 in the blank on the bid form in the block which 
permits a bidder to designate an alternate bid acceptance period.  
Thus, unlike the situation in Walsky, here the bidder rather than the 
agency made the entry which led the Navy to doubt whether the bid 
provided a 120-day bid acceptance period.  

To be responsive, a bid must show on its face at the time of bid 
opening that it is an unqualified offer to comply with all the 
material requirements of the solicitation, and that the bidder intends 
to be bound by the government's terms as set forth in the 
solicitation.  M&G Servs., Inc., B-244531, June 27, 1991, 91-1 CPD  para.  
612.  The bid acceptance period is one of the material IFB 
requirements.  General Elevator Co., Inc., B-226976, Apr. 7, 1987, 
87-1 CPD  para.  385.  Thus, when a bidder fails to specify in its bid that 
it is offering an acceptance period at least as long as the minimum 
required by the IFB, the bid must be rejected as nonresponsive.  Id.  
Similarly, a bidder that offers conflicting bid acceptance periods 
creates an ambiguity in the bid, which prevents it from being in 
unqualified compliance with the IFB's bid acceptance period 
requirement.[1]  The Ramirez Co. and Zenon Constr. Corp., B-233204, 
Jan. 27, 1989, 89-1 CPD  para.  91; McGrail Equip., Co., Inc., B-222091, 
Mar. 26, 1986, 86-1 CPD  para.  293; Cardkey Sys., B-220668, Jan. 29, 1986, 
86-1 CPD  para.  105.

Here, we agree with the Navy that Sundt's bid was ambiguous.  Although 
the acknowledged amendment specified a 120-day acceptance period, the 
bidder also inserted 90 days on SF 1442 for its bid acceptance period.  
Thus, on its face the bid was ambiguous as to what acceptance period 
was being offered.  While Sundt has offered an affidavit from the 
official who prepared the bid in explanation of the ambiguity, the 
responsiveness of a bid must be ascertained from the bid documents 
themselves, not from clarifications provided by the bidder after bids 
have been opened and prices exposed.  Crash Rescue Equip. Serv., Inc., 
B-245653, Jan. 16, 1992, 92-1 CPD  para.  85.  

We also find unconvincing the protester's argument that this situation 
is factually distinguishable from Ingram because Sundt both 
acknowledged the amendment on its SF 1442 and included the actual 
executed amendment in its bid, thus, clearly demonstrating an 
intention to comply with the revised bid acceptance.  The inclusion of 
the executed amendment in Sundt's bid merely constitutes one of the 
indicated forms of acknowledging the amendment; it does not alter the 
ambiguity inherent in the bid that resulted from Sundt's 90-day entry 
on the SF 1442.  While  Sundt also argues that the primary 
responsibility for the ambiguity rests with the agency because the 
agency revised the acceptance period without revising the SF 1442, the 
agency's failure to provide a revised SF 1442 does not change the fact 
that it was the protester who created the ambiguity by placing "90" in 
the blank for the offered bid acceptance period.

The protest is denied.

Comptroller General
of the United States 
  
1. Bids must comply with the required bid acceptance period so that 
all bidders share the same business risks of leaving their bids open 
for acceptance by the government for the same amount of time.  A 
bidder allowed to specify a shorter acceptance period (regardless of 
whether by accident or design) would enjoy an unfair competitive 
advantage because it would be able to refuse the award after its bid 
acceptance period expired should it decide that it no longer wanted 
the award, for example, because of unanticipated cost increases, or 
determine whether to extend its bid acceptance period after competing 
bids have been exposed.  General Elevator Co., Inc., supra.