BNUMBER:  B-274410.2
DATE:  December 27, 1996
TITLE:  3W American Enterprises, Inc.

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Matter of:3W American Enterprises, Inc.

File:     B-274410.2

Date:December 27, 1996

Edward L. Williams for the protester.
Theodore M. Bailey, Esq., for Selrico Enterprises, Inc., an 
intervenor.
Diane D. Hayden, Esq., and George N. Brezna, Esq., Department of the 
Navy, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid that acknowledges all amendments to an invitation for bids (IFB), 
but which contains only the original version of the bid schedule, 
which was modified by an amendment which significantly changed several 
of the estimated required quantities, is nonresponsive because the bid 
is ambiguous regarding whether the bidder intends to be bound to the 
original or amended estimates.  

DECISION

3W American Enterprises, Inc. protests the rejection of its bid and 
the award of a contract to Selrico Enterprises, Inc. under invitation 
for bids (IFB) No. N68950-96-B-0003, issued by the Naval Facilities 
Engineering Command, Department of the Navy, for housekeeping services 
at the Great Lakes Naval Hospital Complex, Naval Training Center, 
Great Lakes, Illinois.  3W American's bid was rejected as 
nonresponsive because the prices were entered on a superseded, 
incorrect bid schedule.  3W American contends that its bid was 
responsive because it acknowledged the amendment which modified the 
bid schedule.  The protester also asserts that the awardee's bid 
should have been rejected for failure to acknowledge a material 
amendment.
 
We deny the protest.

The IFB contemplated the award of a combination firm, fixed-price and 
indefinite quantity contract and, as issued, contained a 27-page bid 
schedule calling for unit and extended prices for 131 line items 
divided into firm, fixed-price work and indefinite quantity work for a 
basic performance period of 1 year with four 1-year option periods.  
The line items on the original schedule divided both the fixed-price 
work and the indefinite quantity work to be accomplished into seven 
"classes of services," labeled as classes A through G, and additional 
specific jobs.  Each class required the cleaning of different areas 
following different schedules and associated estimated numbers of 
cleanings.  Bidders were also to provide prices for an estimated 
square footage for floor stripping, waxing and sealing and carpet 
shampooing.  The indefinite quantity work required the entry of unit 
and extended prices for classes of services with estimated quantities, 
and for an estimated square footage for floor stripping and rewaxing, 
carpet shampooing, cleaning of ceiling light fixtures, exterior window 
cleaning and carpet vacuuming.   

The solicitation contained an adjustment clause, "Estimated Line Item 
Increase," which states, in relevant part:

     "In the indefinite quantity portion of the contract, the 
     estimated line item amount may be unilaterally increased by the 
     [c]ontacting [o]fficer by one unit or 25%, whichever is greater.  
     The [c]ontractor is not obligated to furnish any additional 
     quantity under a line item beyond 125%."

Prior to bid opening, the Navy issued seven amendments to the 
solicitation.  Amendment 0002 deleted the original bid schedule in its 
entirety; added a new     25-page bid schedule calling for unit and 
extended prices for 128 line items divided into firm, fixed-price work 
and indefinite quantity work for a base performance period of 7 months 
with four 1-year option periods; revised the estimated quantities for 
many of the line items; and, extended the bid opening date.  The 
revised bid schedule for the firm, fixed-price work required prices 
for estimated quantities of the seven classes and for the estimated 
square footage of floor stripping and rewaxing, and carpet shampooing.  
The revised schedule for the indefinite quantity work required prices 
for estimated quantities of the seven classes of services and 
estimated quantities of floor stripping and rewaxing, carpet 
shampooing, cleaning ceiling light fixtures, and carpet vacuuming.  
Estimates on the revised bid schedule were revised upward or downward 
for at least half of the line items. 

The agency received 14 bids by the July 12, 1996, bid opening, ranging 
in price from $8,851,324.44 to $35,429,262.87.  3W American was the 
seventh low bidder, at $14,176,483.09 and Selrico was sixth low at 
$14,167,053.87.  Because the tenth low bidder protested to our Office, 
the Navy reviewed the 10 low bids, including Selrico's and 3W 
American's.[1]  Review of the bids resulted in the rejection of the 
five low bids as well as rejection of 3W American's bid.  As to 3W 
American's bid, the Navy discovered that although 3W American had 
acknowledged all seven amendments, it submitted its bid on the wrong 
bid schedule and, as a result, based its bid on the superseded, 
incorrect estimates for most of the line items.

For example, the original bid schedule for the indefinite quantity 
items estimated 2,120 cleanings for class "A" service, including the 
cleaning of intensive care units, emergency rooms, high traffic areas, 
restrooms, entrances and passageways twice per day, including 
holidays, 7 days per week for the base period; the revised bid 
schedule estimated 10,600 cleanings for these services.  For class D 
services, which included the cleaning of offices, labs, classrooms and 
same patient rooms three days per week once per day, excluding 
holidays, the original schedule estimated 2,184 cleanings for the base 
period; the revised schedule estimated 14,700 cleanings.  
By letter dated July 30, 1996, the Navy informed 3W American that its 
bid had been rejected as nonresponsive.  3W American protested to the 
agency the following day and, when notified that the agency had made 
award to Selrico, protested to our Office.  

3W American states that it used the original bid documents "to be 
safe" because it was confused by all the amendments, sublines and 
options.  3W American argues that its unit prices should be 
controlling; hence, rather than evaluating its bid as $14,176,483.09, 
the price which 3W American actually entered, and which accurately 
represents the total of the price entries based on the unamended 
quantities, the protester would have the agency recalculate its bid 
using the amended schedule quantities, which results in a total price 
substantially below Serlrico's.  The protester also points out that 
the agency's bid abstract did not record that 3W American's bid was 
nonresponsive.  Additionally, the protester argues that Selrico's bid 
is nonresponsive because the bid abstract does not indicate that 
Selrico acknowledged amendment 0007.

Generally, where a bidder does not submit its price on a revised bid 
schedule listing additional work, but instead submits its bid on the 
original schedule, the mere acknowledgment of the amendment containing 
the revised bid schedule is not sufficient to bind a bidder to perform 
the additional work because it is not clear that the bidder has 
committed itself to perform the extra estimated work for the price set 
forth in the bid.  See Harvey Honore Constr. Co., Inc., B-262071.2, 
Jan. 31, 1996, 96-1 CPD  para.  30 (bid was found nonresponsive where bidder 
acknowledged amendment but submitted its bid on original bid schedule 
instead of a revised schedule provided by an amendment which increased 
the estimated quantity of dirt to be excavated under construction 
contract).  Application of that rule leads us to the conclusion that 
the Navy properly found 3W American's bid to be nonresponsive.

Amendment 0002 increased many of the estimates of cleanings that were 
to be performed by the contractor, and, despite acknowledging the 
amendment, 3W American submitted a bid based on, for example, an 
estimated 2,184 instead of the actual estimated 14,700 cleanings for 
indefinite quantity class D services and an estimated  2,120 instead 
of the actual estimated 10,600 cleanings for indefinite quantity class 
A services for the base period.  The adjustment clause, cited above,  
creates a quantity limit on the contractor's obligation under the 
indefinite quantity portion of the contract.  Specifically, under this 
limitation, 3W American would not be required to furnish any 
additional quantities under the indefinite quantity portion of the 
solicitation beyond 125 percent of the estimated quantities.  Thus, 
where 3W American is committed to the original estimated quantity of 
2,184 cleanings for indefinite quantity class D services, 3W American 
would not be required to supply more than 2,730 cleanings for 
indefinite class D services.  This is substantially below the agency's 
actual requirement as reflected by the amended estimated quantity of 
14,700 cleanings, under which 3W American would be required to provide 
up to 19,375 cleanings.  Since it is not clear from the bid whether 3W 
American intended to be committed to the amendment's larger estimates 
or the original schedule's lesser estimates, we can only conclude that 
on its face 3W American's bid does not provide a firm commitment to 
what the IFB as amended envisions as the required work and therefore 
the bid is nonresponsive.

To the extent 3W American contends that its stated unit price for each 
item represents its unit prices for the additional or reduced 
quantities, a nonresponsive bid cannot be made responsive by 
explanation after bid opening.  Environmental Health Research & 
Testing, Inc., B-246601, Mar. 10, 1992, 92-1 CPD  para.  274.  Allowing 3W 
American to explain its bid after bid opening would, in effect, give 
3W American the advantage of electing to accept or reject the contract 
by choosing whether to make the bid responsive.  Id.  Such a situation 
obviously would have an adverse impact on the integrity of the bidding 
process.  Id.

Finally, as to 3W American's allegation that Selrico failed to 
acknowledge amendment 0007, 3W American is not an interested party to 
raise this issue since it would not be in line for award were its 
protest to be sustained.  ECS Composites, Inc., B-235849.2, Jan. 3, 
1990, 90-1 CPD  para.  7.  In any event, even though the acknowledgment was 
not recorded on the agency's bid abstract, the record shows that 
Selrico did acknowledge this amendment and that the acknowledgment was 
received by the agency before bid opening.[2]  

The protest is denied.

Comptroller General 
of the United States

1. The protest was dismissed because the protester was not an 
interested party. Teltara, Inc., B-274410, Sept. 27, 1996.

2. 3W American argues that the bid abstract is the "governing 
document" of the bid proceeding and, "everything that is not shown on 
the abstract," such as Selrico's acknowledgment and 3W American's 
nonresponsiveness, "should officially not exist."  As noted above, the 
agency acknowledges the discrepancy as to Selrico's acknowledgment of 
the amendment and has submitted to our Office a copy of Selrico's 
time/date stamped acknowledgment.  Failure to record the 
acknowledgment was merely clerical error or oversight.  As to 3W 
American's nonresponsiveness, we note that none of the bids determined 
to be nonresponsive was so noted on the abstract.  Under these 
circumstances, the clerical discrepancies on the bid abstract provide 
no basis to object to the Navy's award decision since the relevant 
determinations are otherwise supported by the agency record.  A.T.F. 
Constr. Co., Inc., B-228060; B-228061, Oct. 30, 1987, 87-2 CPD  para.  436.