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).