BNUMBER: B-276923
DATE: July 16, 1997
TITLE: MCC Construction Corporation, B-276923, July 16, 1997
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Matter of:MCC Construction Corporation
File: B-276923
Date:July 16, 1997
James J. Gonzales, Esq., Holland & Hart, L.L.P., for the protester.
Laurence Schor, Esq., and Susan L. Schor, Esq., McManus, Schor, Asmar
& Darden, L.L.P., for Satellite Services, Inc., an intervenor.
Maj. Michael O'Farrell 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
Under invitation for bids where award was to be made to the bidder
submitting the lowest coefficient percentage factor, protest that
contracting agency improperly failed to evaluate bids in accordance
with the solicitation by using the wrong multipliers is denied where
the evaluation was conducting using the multipliers set forth in the
solicitation; any alleged contradiction between solicitation
provisions was apparent on the face of the solicitation and thus had
to be protested prior to bid opening.
DECISION
MCC Construction Corporation protests the award of a contract to
Satellite Services, Inc. under invitation for bids (IFB) No.
DAHA-44-97-B-0001, issued by the Virginia Army National Guard/U.S.
Property and Fiscal Office for Virginia for maintenance, repair, or
minor alterations at specified military bases. MCC argues that the
Army improperly failed to evaluate the bids in accordance with the
solicitation's stated methodology.
We deny the protest.
The solicitation, conducted using two-step sealed bidding, anticipated
the award of a multi-year, indefinite delivery/indefinite quantity
fixed-price contract to provide these services to Virginia Air
National Guard bases located at the 192d Wing, Sandston, Virginia; the
Alert Facility located on Langley Air Force Base, Virginia; and the
203d Redhorse Squadron at the State Military Reservation, Virginia
Beach, Virginia. Six firms, including MCC and Satellite, were deemed
qualified to participate in the second stage of the procurement, at
issue here.
Under the anticipated contract, the agency will issue delivery orders
for projects to be performed at the three locations. Prices for
individual delivery orders will be established by multiplying the
awardee's proposed coefficient percentage factors by the prices of the
specified tasks as listed in the current edition of a standard unit
pricing guide.[1] Hence, rather than bids for fixed-dollar amounts,
bidders were to provide separate coefficient percentage factors for
each location's set of four line items, for a total of 12 factors.[2]
The four line items listed under each location were for construction,
repair, and maintenance projects during normal working hours;
construction, repair, and maintenance projects during overtime hours;
highway, water, and sewer line projects during normal working hours;
and highway, water, and sewer line projects during overtime hours.[3]
The solicitation's section C, paragraph 00100-3, "Statement of Work,"
stated:
"Projects will vary in size and dollar amount. . . . It is
anticipated that 90% of all work called for will be construction;
the remaining 10% will be highway/sewer projects. Projects are
expected to be distributed as follows:
85% Sandston 10% Virginia Beach 5% Langley"
Paragraph 00100-8 of that same section, "Percentage of Work," stated
that the percentage of work at each base was "an estimate used for
evaluation factors for purpose of award."
While the IFB stated that bids would be evaluated and award made in
accordance with the sealed bidding provisions of the Federal
Acquisition Regulation, it was not until a pre-bid opening conference
that the agency clarified that the basis for award would be the lowest
coefficient. At that conference, the agency also stated that
clarification was required as to how the agency would determine the
lowest proposed coefficient, and that this issue would be addressed by
amendment.
Amendment No. 0001, issued February 3, 1997, contained the following
instructions (underscoring in the original):
"2.The following clarification is made for the basis of award:
The basis for award will be lowest weighted coefficient as
described below . . .
"3.The lowest coefficient will be determined by weighing each
line item against the amount of work to be performed as
described in the Statement of Work. The weighted average is
for evaluation purposes only and will not be incorporated into
any resulting contract. For example:
BIDDER #1
DESCRIPTION COEFFICIENT* % OF WORK AVG
0001 Construction at Sandston 1.06 85 .901
0002 Overtime work at Sandston .02 85 .017
0005 Construction at Va Beach 1.10 10 .110
0007 Highway Work at Va Beach 1.09 10 .109
WEIGHTED COEFFICIENT BIDDER #1 1.137
BIDDER #2
0001 Construction at Sandston 1.08 85 .918
0002 Overtime at Sandston .04 85 .034
0005 Construction at Va Beach 1.15 10 .115
0007 Highway Work at Va Beach 1.11 10 .111
WEIGHTED COEFFICIENT BIDDER #2 1.178
"* Coefficient rates are for example purposes only and are not
intended to represent any anticipated figures.
"Based on the above sample, Bidder #1 would be the apparent low
bid."
"4.. . . Bids will be publicly opened and coefficients read
aloud; however, no apparent low bidder will be declared until
a complete evaluation is made using the above guidance."
On the February 11 bid opening date, the Army read aloud the
coefficients proposed by each of the six bidders. The record shows
that the bids were evaluated in accordance with the example provided
in the amendment. That is, the coefficients were multiplied against
the locational percentages listed in the statement of work. Under
this evaluation methodology, Satellite was determined to be the
apparent low bidder, with a coefficient of 2.2616. MCC was the
apparent second low bidder, with a coefficient of 2.2910.
By letter dated February 24, MCC advised the agency that it had
received telephone calls from Satellite indicating that that firm had
won the contract. MCC stated that it had been present at bid opening
and had recorded the coefficients, and that its calculations showed it
to be the apparent low bidder. MCC continued:
"On Amendment 0001, paragraph 3, . . . it states, 'The lowest
coefficient will be determined by weighing each line item against
the amount of work to be performed as described in the Statement
of Work.' It then goes on to present an inaccurate example of
how to determine the lowest coefficient.
"It is the contention of MCC Construction Corporation that the
example presented in Amendment 0001 is flawed and the
coefficients should be weighted 'against the amount of work to be
performed as described in the Statement of Work.' Using this as
a guide, each coefficient would be weighted with three factors:
(1) Its location percentage . . . ; (2) Its classification
percentage (i.e. construction or heavy and highway) . . . ; and
(3) Its normal or other-than-normal working hours percentage . .
. ."
After MCC was advised that award had been made to Satellite, the firm
filed this protest.
MCC asserts that the coefficients were to be weighted against the
"amount of work to be performed as described in the Statement of
Work"; that the statement of work contained two sets of figures; and
that, as a result, the multipliers should have been combinations of
these two sets of figures, adjusted for overtime or normal working
hours, as appropriate.[4] The Army and Satellite argue that the
amendment's example clearly indicated that the evaluation would be
conducted using the multipliers which were actually used. They
further argue that MCC's protest is an untimely challenge to what it
sees as a contradiction between the amendment's example and the
statement of work.
To be reasonable, an interpretation of a solicitation must be
consistent with the solicitation when read as a whole and in a manner
giving effect to all of its provisions. Herman Miller, Inc., 70 Comp.
Gen. 287, 290 (1991), 91-1 CPD para. 184 at 4; Supplemental Staffing
Servs., Inc., B-257385, Sept. 21, 1994, 94-2 CPD para. 108 at 3. MCC's
interpretation of the solicitation's evaluation methodology is not
reasonable because it fails to give effect to all of the language that
is present. Nabholz Bldg. and Management Corp., B-274930, Nov. 21,
1996, 96-2 CPD para. 196 at 3.
It is undisputed that the multipliers would be based on "the amount of
work to be performed as described in the Statement of Work," and that
the statement of work shows two sets of figures, one for the type of
work to be done and one for the percentage of projects expected to be
performed at each location. If the amendment had not included an
example showing how the evaluation would be conducted, it might be
necessary to parse the statement of work to determine what the
multipliers would be. But the amendment's inclusion of the example
disposes of this question by clearly indicating that the "amount of
work" would be represented by the locational percentages. That these
percentages standing alone, and not in any combination with other
percentages, would be used to evaluate the bids is underscored by the
language in section C, paragraph 00100-8, which states that the
"percentage of work at each base . . . is an estimate used for
evaluation factors for purpose of award." In our view, any question
that existed regarding the amount of work as described in the
statement of work was answered by the amendment's example.
MCC's interpretation of the solicitation wholly ignores the language
of the amendment's example; indeed, it must in order to make any
sense.[5] The firm's contention that the example could not have been
meant to be taken literally because it did not account for all line
items is untenable; the example was just that, an example. The fact
that it was not all-inclusive does not entitle the protester to ignore
it altogether, see Nabholz Bldg. and Management Corp., supra, and its
insistence on doing so was at its peril. The record shows that the
evaluation methodology used by the agency was proper and consistent
with the solicitation, and we have no basis to object to the agency's
actions. General Elec. Co., 71 Comp. Gen. 519, 521 (1992), 92-2 CPD para.
159 at 3; Supplemental Staffing Servs., Inc., supra, at 4.
In any event, the protest itself reveals that MCC is actually
challenging what it perceives to be a contradiction between the
amendment's example and the language in the statement of work. Even
if we did not consider the IFB clear as to the evaluation methodology
that would be used, the contradiction that MCC perceives was apparent
on the face of the solicitation. Under our Bid Protest Regulations,
such a deficiency must be protested prior to the time set for bid
opening. 4 C.F.R. sec. 21.2(a)(1) (1997); General Elec. Co., supra. The
allegation made in MCC's February 24 letter to the agency, by its own
admission, before the agency notified it of the evaluation process
used, only serves to reinforce our conclusion that the firm was on
notice that this alleged contradiction existed on the face of the
solicitation. Where a protester believes that such a contradiction
exists, it does not have the option of simply making unilateral
assumptions regarding the meaning of the provisions and then expecting
relief when the agency does not act in the manner the protester
assumed; rather, the patent impropriety it believes exists must be
challenged prior to closing. Christie Constructors, Inc., B-271759;
B-271759.2, July 23, 1996, 96-2 CPD para. 87 at 6.
The protest is denied.
Comptroller General
of the United States
1. A coefficient percentage factor is a numerical factor representing
the contractor's indirect costs and profit or any other costs not
included in the unit pricing guide's prices. A coefficient percentage
factor of 1.25, for example, would indicate that indirect costs and
profit are 25 percent of direct costs.
2. Bidders were to submit two additional coefficient percentage
factors for line items whose evaluation is not at issue here.
3. The solicitation estimated that 2 percent of the maximum dollar
amount of the contract would be for work accomplished on an overtime
basis.
4. For example, MCC believes that the multiplier for the line item
covering construction during normal working hours at the Sandston
location should have been 74.97 percent:
a) 85 percent [percentage of work at Sandston] x 90
percent [percentage of work that will be construction]
= 76.5 percent;
b) 76.5 percent x 98 percent [percentage of work conducted
during normal working hours] = 74.97 percent.
5. MCC's argument that the agency's interpretation of the solicitation
ignores the language in the statement of work suffers from the same
defect. Only if the agency ignored the language of the amendment's
example could its interpretation even arguably be unreasonable.