BNUMBER:  B-276979.2; B-277463 
DATE:  August 14, 1997
TITLE: Grot, Inc., B-276979.2; B-277463, August 14, 1997
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Matter of:Grot, Inc.

File:     B-276979.2; B-277463

Date:August 14, 1997

Andrew J. Kilpatrick, Jr., Esq., Hickman, Sumners, Goza & Gore, for 
the protester.
Joseph A. Gonzales, Esq., and Larry E. Beall, Esq., Department of the 
Army, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly canceled invitation for bids after bid opening where 
the solicitation specifications did not adequately set forth the 
agency's requirements, and prior to bid opening, the agency had 
provided only one of several offerors with informal clarifications 
regarding the actual requirements.

DECISION

Grot, Inc. protests the cancellation after bid opening of invitation 
for bids (IFB) 
No. DACA01-97-B-0033, issued by the Department of the Army, Corps of 
Engineers, and the resolicitation of the same requirement for upgrade 
of fire protection at Arnold Air Force Base, Tennessee.  

We deny the protests.

The procurement is for the addition and/or replacement of fire 
protection devices and fire alarm systems in several buildings at 
Arnold Air Force Base.  The specifications included requirements for 
heat and smoke detectors, fire alarm panels, horns and miscellaneous 
appurtenances.  The successful firm was to perform all work and 
furnish all plant, labor, equipment, and materials required by the 
specifications and drawings.  The IFB consisted of 17 base bid items 
and 6 option items, each separately priced.  The IFB contemplated the 
award of a fixed-price contract to the responsible bidder submitting 
the low responsive bid on the base items and all options items.

Four bids were received by the April 29 bid opening, ranging from 
$1,322,807 to $3,017,218.  The government estimate was $1,285,214.  
Grot's bid of $2,282,000 became low after the apparent low bidder 
claimed a mistake in bid and was allowed to withdraw its bid.  When 
the agency compared the three remaining bids with the government's 
estimate, it concluded that none of them was in the "awardable range" 
(presumably meaning that none was at a reasonable price).

The agency subsequently examined the solicitation and determined that 
the specifications were ambiguous.  For example, the agency concluded 
that the following specifications were defective:  

     1.  Specification 16721 did not clearly define the scope of work 
     and ambiguities existed between plans and specifications.

     2.  Neither the drawings nor specifications clearly indicate the 
     scope of work in testing the existing fire alarm/detection 
     system.

     3.  The scope of work for the removal of lead paint was not 
     clearly defined in the solicitation.

     4.  The scope of work was not clearly defined for additions to or 
     replacement of existing fire alarm/detection systems devices for 
     numerous buildings.
  
     5.  The drawing for Building 895 required a new fire alarm 
     control panel and radio transmitter, but did not indicate the 
     number of zones.

Accordingly, the agency determined that the system design had to be 
clarified to ensure accurate understanding of the scope of work by 
bidders and concluded that this constituted a compelling reason to 
cancel the IFB.  The bidders were notified of the cancellation by 
letter dated May 28.  The specifications were revised and a new 
solicitation was issued on June 20 with a July 22 bid opening date.[1]  
Grot asserts that the agency lacked a compelling reason to cancel 
because the IFB did not contain ambiguous or defective specifications.  
The protester maintains that the plans and specifications were 
sufficiently clear to permit the government to estimate the cost of 
the work, as well as to permit four firms to formulate and submit bids 
on the project.  

While Grot appears to concede that the resolicitation issued on June 
20, for which the government estimate is $2,000,000, addressed these 
ambiguities and also added a requirement for a supervisor, Grot takes 
the position that these clarifications and changes are insignificant.  
With respect to the clarification of the scope of required lead paint 
abatement activity by the contractor, Grot contends that this simply 
codifies its understanding of this provision.  It is the protester's 
position that the scope of lead paint abatement is clearly defined by 
the specifications, which require only the area of paint which is 
disturbed to be abated.  The protester argues that it is not necessary 
to clarify that the system in place must be tested prior to upgrade 
since no bidder has suggested any other interpretation of this 
provision, and there is no need or requirement that this 
"clarification" be made.  Additionally, the protester argues that the 
necessity for additions or replacement of devices is properly the 
subject of change orders when necessary and that the agency's 
reference to alleged ambiguities concerning zones is meritless.  The 
protester maintains that it is entitled to the award as the low 
responsive bidder.

Because of the potential adverse impact on the competitive bidding 
system of cancellation after bid prices have been exposed, a 
contracting officer must have a compelling reason to cancel an IFB 
after bid opening.  Federal Acquisition Regulation  sec.  14.404-1(a)(1).  
The regulations authorizing cancellation after bid opening specify 
that inadequate or ambiguous specifications may constitute a 
compelling reason to cancel an IFB.  FAR  sec.  14.404-1(c)(1).  While the 
contracting officer has broad discretion to determine whether or not 
compelling circumstances for cancellation exist, our Office will 
review that decision to ensure that it was reasonable.  Phil Howry 
Co., B-245892, Feb. 3, 1992, 92-1 CPD  para.  137 at 2.

Here, the determination to cancel the IFB was reasonable because the 
specifications included a substantial number of material ambiguities, 
as outlined above.  While the protester now asserts that the 
specifications are clear and unambiguous, the record establishes that, 
in fact, the protester believed otherwise at the time it was preparing 
its bid.  Thus, on several occasions prior to submitting its bid, the 
protester sought clarification from the agency with respect to 
numerous specifications, including some that formed the basis for the 
agency's later determination that the specifications were ambiguous.  
For example, the protester sought detailed clarification concerning 
certain areas where no heat detectors were shown in the IFB diagrams.  
The protester also complained that there were no zones shown for 
existing devices in some buildings or for any devices in other 
buildings.  The protester further complained that, while the 
specifications stated that the fire detection and internal alarm 
system shall be configured in accordance with NFPA72, the drawings did 
not reflect a design showing compliance with NFPA72 and therefore it 
was unclear whether a firm should bid the project to bring each 
building up to NFPA72 compliance.  

Grot was sufficiently leery about what it perceived to be 
specification deficiencies that, by letter dated April 3, the 
protester stated that it had "grave concern that a project of this 
size and nature has not been more thoroughly designed," and argued 
that "allowing the project to be bid as designed would only allow the 
contractor the availability to make a very wild guess as to what the 
[government] wants and needs and thus his pricing would reflect this."  
While the agency states that it orally responded and apparently 
satisfied the protester's concerns, the agency never provided a 
written response and never amended the solicitation in order to 
clarify the requirements for all potential bidders.      

The protester's own actions in seeking and obtaining clarification of 
numerous specification deficiencies prior to bid opening, many of 
which could have a significant impact on performance or pricing, 
confirm the propriety of the agency's determination that the original 
specifications were materially defective.  While the agency may have 
clarified the requirements for the protester, it did not ensure that 
other bidders obtained an accurate description of the agency's actual 
requirements.  Because the solicitation as issued did not adequately 
reflect the government's needs and the agency's clarifications were 
improperly provided to only one offeror, FAR  sec.  14.208(c), cancellation 
of the solicitation on the basis that the specifications were 
inadequate was reasonable and proper.   

The protests are denied.

Comptroller General 
of the United States

1. Grot also protests the issuance of this new solicitation, arguing 
that its issuance is premature, illegal, and unauthorized by the 
Federal Acquisition Regulation (FAR).  The agency reports that, while 
it intends to accept bids and open them, it will not award a contract 
until after resolution of the original protest.  While we note that 
the FAR does not prohibit the issuance of a new solicitation and the 
opening of bids under these circumstances, this is in any event an 
issue relating to the propriety of an agency's implementation of a 
protest stay, which is not subject to review by our Office.  Stevens 
Technical Servs., Inc., 72 Comp. Gen. 183, 192 (1993) 93-1 CPD  para.  385 
at 12.