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nonresponsive because the prices were entered on a superseded,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.