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.