BNUMBER:  B-274930
DATE:  November 21, 1996
TITLE:  Nabholz Building and Management Corporation

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Matter of:Nabholz Building and Management Corporation

File:     B-274930

Date:November 21, 1996

James C. Baker, Jr., Esq., Friday, Eldredge & Clark, for the 
protester.
Maj. Margaret S. Bond, Lt. Col. David S. Franke, and Col. Nicholas P. 
Retson, Department of the Army, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that bid schedule in solicitation for construction contained 
an ambiguity which led the protester to mistakenly include its bond 
costs under both a base bid line item and a bond costs line item is 
denied where the bid schedule clearly instructed bidders to set forth 
their bond costs separately, in a line item set aside for that 
purpose, and the language in a referenced clause reiterated and 
explained that instruction; the protester's interpretation 
unreasonably reads into the solicitation language which is not present 
and ignores language which is present. 

DECISION

Nabholz Building and Management Corporation protests the award of a 
contract to Flynco, Inc. under invitation for bids (IFB) No. 
DAHA03-96-B-0001, issued by the United States Property and Fiscal 
Officer for Arkansas for the construction of a base supply complex at 
Little Rock Air Force Base, Arkansas.  Nabholz argues that the 
solicitation's bid schedule contained an ambiguity which led the firm 
to mistakenly include its bond costs under two separate line items.   

We deny the protest.

The solicitation's bid schedule contained the following line items:

     ITEM      DESCRIPTION

     0001      "Base Supply Complex, BASE BID
               (Does not include additive bid items listed below)"
     0002      Additive Bid Item 1
     0003      Additive Bid Item 2
     0004      Additive Bid Item 3
     0005      Additive Bid Item 4
     0006      "BOND COSTS, to include bid, performance and payment
               bonds.  All bidders must enter their bond cost in this 
               line 
               item in accordance with [Defense Federal Acquisition 
               Regulation Supplement (DFARS)] Clause 52.219-7008
               located in section 00600 Representations and 
               Certification."

The clause at DFARS  sec.  252.219-7008, "Notice of Evaluation Preference 
for Small Disadvantaged Business (SDB) Concerns--Construction 
Acquisition--Test Program," is set out in full in the solicitation.[1]  
In relevant part, the clause states: 

     "(b) Evaluation preference.
          (1)  Offerors shall separately state bond costs in the 
          offer.  Bond costs include the costs of bid, performance, 
          and payment bonds.
          (2)  Offerors will be evaluated initially based on their 
          total prices.  If the apparently successful offeror is an 
          SDB concern, no preference-based evaluation will be 
          conducted.
          (3)  If the apparently successful offeror is not an SDB 
          concern, offerors will be evaluated based on their prices 
          excluding bond costs.  If, after excluding bond costs, the 
          apparently successful offeror is an SDB concern, bond costs 
          will be added back to all offers, and offers from SDB 
          concerns will be given a preference in evaluation by adding 
          a factor of 10 percent to the total price of all offers . . 
          . ."

The Army received five bids and proceeded to read them aloud.  During 
bid opening, one bidder apparently stated that the bid form was 
ambiguous as to whether bidders were to include the bond costs in the 
base bid line item, and that her firm had called the contract 
specialist, who advised the firm to enter such costs only in the bond 
costs line item.  Nabholz then informed the agency that its bid had 
mistakenly included the bond costs twice--in the base bid line item 
and in the bond costs line item.  The Army acknowledged this 
assertion, continued reading the bids aloud, and determined that 
Flynco was the apparent low bidder with a total bid--inclusive of 
items one through six--of $4,019,200.  Nabholz was the apparent second 
low bidder with a total bid of $4,046,500.  Since Nabholz would have 
been the apparent low bidder if the amount it bid in the bond costs 
line item were subtracted from its total bid, the Army stated that it 
would consider the implications of the firm's assertion.

In discussing the matter with the contract specialist, the contracting 
officer learned that, prior to bid opening, two bidders had called to 
ask if the bond costs belonged in the base bid line item.  The 
contract specialist states that he informed each bidder that, in 
accordance with DFARS  sec.  252.219-7008, they were to separately list 
their bond costs on the line item provided for that purpose.  Two 
other bidders subsequently called regarding other matters, and he 
asked if they had any problems with the bid form.  Both confirmed 
that, in accordance with the solicitation's instructions, they had 
entered their bond costs only in the line item provided for that 
purpose.  According to the contract specialist, these latter 
conversations were confirmation that the bid schedule was not 
ambiguous, and that the first two bidders were merely calling to 
ensure that their bids had been properly prepared.  Both the 
contracting officer and the contract specialist agreed that there was 
no ambiguity in the bid schedule, given the separate line item 
provided for bond costs and the language in DFARS  sec.  252.219-7008.  

Nabholz was asked to support its claim that it had made a mistake in 
its bid, pursuant to Federal Acquisition Regulation (FAR)  sec.  14.407-3 
(FAC 90-29).  The Army reviewed the firm's bid and the solicitation, 
as well as other information provided by Nabholz, and determined that 
it could not allow correction of the alleged mistake since the 
existence of the mistake and the bid actually intended was not 
ascertainable substantially from the invitation and the bid itself.  
FAR  sec.  14.407-3(a).  Award was made to Flynco on September 27, and this 
protest followed.

Nabholz argues that the solicitation was ambiguous as to whether 
bidders should include their bond costs in the base bid line item, and 
that it was misled into including its bond costs in both the base bid 
line item and the bond costs line item.  The firm contends that it is 
the "general custom" of the construction trade to include bond costs 
in the base bid, and that the reference to the DFARS clause in the 
bond costs line item, as well as the clause itself, can be reasonably 
interpreted to suggest that the bond costs are to be listed separately 
for "informational purposes only." 

A solicitation ambiguity exists where two or more reasonable 
interpretations of a solicitation are possible.  Kirkland Sales, Inc., 
B-249090, Oct. 23, 1992, 92-2 CPD  para.  278; Delta Scientific Corp., 
B-233485, Nov. 23, 1988, 88-2 CPD  para.  516.  To be reasonable, an 
interpretation must be consistent with the solicitation when read as a 
whole and in a manner which gives effect to all its provisions.  
Herman Miller, Inc., 70 Comp. Gen. 287 (1991), 91-1 CPD  para.  184; 
Kirkland Sales, Inc., supra.  Nabholz's interpretation is not 
reasonable because it reads language into the solicitation that is not 
present and fails to give effect to all of the language that is 
present.

Nabholz's interpretation is premised upon its belief that base bids 
for construction contracts customarily include bond costs.  Whether or 
not this belief is valid in general, there is no language in this 
solicitation to suggest that bond costs as to this solicitation are to 
be included in this base bid line item.  To the contrary, the very 
presence of a separate line item for bond costs provides clear 
instruction to bidders that their bond costs are to be priced 
separately from their base bid costs.  We agree with the Army that 
DFARS  sec.  252.219-7008 cements this instruction.  The clause not only 
reiterates that "[o]fferors shall separately state bond costs in the 
offer," but provides the rationale for doing so.  

Nabholz argues that the clause's language concerning the "adding back" 
of bond costs, DFARS  sec.  252.219-7008(b)(3), supports its position that 
the bond costs line item was "informational only."  The firm contends 
that if bond costs were to be "added back," they would first have to 
be subtracted from the base bid.  This interpretation ignores the 
plain language of the bid schedule, which provides a separate line 
item for bond costs.  When the solicitation is read as a whole, it is 
clear that the language referred to simply means that the figure 
entered on the bond costs line item may be excluded from or added back 
to the total bid for purposes of applying the evaluation preference.  

Nabholz's reliance on the telephone conversations between the contract 
specialist and the other bidders to support its position is not 
persuasive in light of our determination that the only reasonable 
interpretation of the solicitation's language is that bond costs were 
to be listed separately from base bid costs.  Moreover, the 
contracting specialist's responses to these bidders did no more than 
reference or reiterate information that was provided in the IFB.  
Since no new information was provided, the agency was not required 
under FAR  sec.  14.208(c) to disseminate the information to all bidders by 
way of an amendment.[2]  Continental Serv. Co., B-258807.2, Apr. 11, 
1995, 95-1 CPD  para.  190.

The protest is denied.

Comptroller General
of the United States

1. The test program is set forth at DFARS Subpart 219.72, and the 
clause at DFARS 
 sec.  252.219-7008 is to be included in all solicitations to which the 
test program applies.  See Schwegman Constructors and Eng'rs, Inc., 
B-272223, Aug. 28, 1996,
96-2 CPD  para.  90.

2. Any information that is given to a prospective bidder concerning an 
IFB must be promptly furnished to all other prospective bidders as a 
solicitation amendment if the information is necessary for bidders to 
submit bids, or if the lack of such information would be prejudicial.  
FAR  sec.  14.208(c).