BNUMBER:  B-277477.2 
DATE:  March 27, 1998
TITLE: Booth & Associates, Inc.--Advisory Opinion, B-277477.2, March
27, 1998
**********************************************************************

Matter of:Booth & Associates, Inc.--Advisory Opinion

File:     B-277477.2

Date:March 27, 1998

Lynn B. Larsen, Esq., McKay, Burton & Thurman, for Booth & Associates, 
Inc.
Marian E. Sullivan, Esq., Department of the Air Force, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Agency properly reinstated a bid, previously rejected as 
nonresponsive, which  failed to include a completed supplemental 
schedule of individual hourly rates where the schedule was not used in 
the evaluation of bid prices, and its omission did not affect the 
bidder's promise to perform as specified.

2.  Agency decision to cancel and revise an invitation for bids (IFB), 
after bid opening, was proper where the record shows that the IFB 
contained a material defect--an ambiguity in how to complete the 
pricing schedule--that resulted in competition on an unequal basis.

DECISION

The United States District Court for the District of Utah requests an 
advisory opinion from the General Accounting Office (GAO) with respect 
to the complaint of Booth & Associates, Inc.  Booth is seeking 
injunctive relief to prevent the Department of the Air Force from 
revising invitation for bids (IFB) No. F42650-97-B-0034 and soliciting 
bids on that revised solicitation.  The Air Force elected to revise 
the IFB after reviewing a protest filed at GAO by Redcon, Inc. (file 
number B-277477), challenging a decision by the Air Force to reject 
Redcon's bid under the IFB as nonresponsive.  Upon review, the Air 
Force concluded that Redcon's bid was improperly rejected, and that 
the solicitation was ambiguous and should be revised and reissued.  
When notified of the Air Force decision, Redcon withdrew its protest 
to our Office.

After Booth asked the court to bar the Air Force from revising the 
solicitation, both parties agreed to a stay in the proceedings pending 
receipt of a decision from GAO.  By order dated November 13, 1997, the 
court asked GAO to consider the following questions:  (1) would Redcon 
have prevailed on its protest? and (2) was the United States justified 
in deciding to revise the solicitation and resolicit bids from the 
technically acceptable bidders?  

In accordance with the court's request for an advisory opinion, the 
parties provided us with a copy of the briefs filed at the court, and 
the administrative record, which includes the filings made to our 
Office.  No further pleadings were requested or received.

As described below, we conclude that the Air Force acted properly in 
deciding to revise the solicitation in this procurement, and resolicit 
for bids.  Underlying this decision, we agree with the Air Force's 
assessment that the Redcon protest would have been sustained if GAO 
had reached a decision on the merits.

BACKGROUND

On July 29, 1996, the Air Force issued request for proposals (RFP) No. 
F42650-96-R-0042, as the first part of a two-step procurement for 
design and drafting services in support of weapons modification 
programs at Ogden Air Logistics Center, Hill Air Force Base, Utah.  
The solicitation anticipated award of an indefinite quantity, 
indefinite delivery contract covering a 1-year base period, followed 
by four 1-year options, with delivery orders to be issued to the 
successful offeror as requirements were identified.

Upon receipt and evaluation of unpriced technical proposals, the 
agency concluded that the proposals submitted by Booth, Redcon, and 
Mesa Associates were technically acceptable.  The agency then issued 
IFB No. F42650-97-B-0034 to the three acceptable offerors, and 
requested submission of sealed bids by 2 p.m. on March 20, 1997. 

The IFB required bidders to complete a pricing schedule using a 
composite hourly rate for the design and drafting services, which was 
multiplied by a government-provided estimate of staff-hours to obtain 
a price.  Separate entries were to be made for the base year and for 
each of the 4 option years, at contract line item numbers (CLIN) 0001, 
0101, 0201, 0301, and 0401, respectively.  Immediately following each 
of these entries were separate CLINs (CLINs 0002, 0102, 0202, 0302, 
and 0402) for data and drawings which were not priced separately.  At 
the end of each of the CLINs related to a performance period, the 
pricing schedule included a summary line for the bidder to enter the 
total cost for that performance period.  IFB at 3, 5, 6, 7, and 9.    

Only one CLIN was different from the recurring CLINs described above.  
At CLIN 0003, bidders were required to enter a price for the first 
delivery order during the base year.  (The effort for the first 
delivery order had been identified in the initial statement of work 
included in the RFP.)  The line where bidders entered their total 
price for the base year was found after CLINs 0001, 0002, and 0003, 
but there were no instructions about whether the price for CLIN 0003 
was to be added to the price for CLIN 0001--which purported to be the 
price for all needed effort during the base period--or included within 
it.  IFB at 3.

At the end of the IFB's pricing schedule was a block of instructions 
followed by two additional one-line schedules, called schedule 1 and 
schedule 2.  IFB at 9.  The instructions and one-line schedules are 
set forth below:

     The hourly calendar year (CY) labor rates listed below in 
     schedules 1 and 2 will be used to price all labor required to 
     perform within the scope of the basic contract.  Either the 
     offeror's composite rates or individual rates, at the discretion 
     of the administrative contracting officer (ACO), may be used for 
     pricing the contractor effort for each delivery order.  All rates 
     shall include any teaming or subcontractor arrangements, and 
     shall be fully burdened to include all applicable overhead, G&A 
     and profit.

     Schedule 1 and 2 applies to the following contract line items:  
     0001, 0101, 0201, 0301, and 0401. 

                        Schedule 1 (FFP)

                         OFFEROR'S COMPOSITE LABOR RATES
                         CY97    CY98    CY99    CYOO    CYO1    CY02
     Design/Drafting Services

                        Schedule 2 (FFP)

                         OFFEROR'S INDIVIDUAL LABOR RATES
                         CY97    CY98    CY99    CYOO    CYO1    CY02
     *Description/Code

     *Job classifications are by company description including an 
     applicable labor codes used for payroll records.

In addition to the language quoted above, CLINs 0001, 0101, 0201, 
0301, and 0401 (IFB at 2, and 4-8) include the following language: 

        For the purposes of evaluation, amounts applicable to this 
        line item are determined by multiplying the offeror's proposed 
        composite labor rates, under schedule I below, by the 
        government's estimated man-hours.  The amount of labor hours 
        and associated rates for subsequent delivery orders issued 
        against the basic contract may be negotiated based on either 
        the offeror's proposed rates established under schedule I or 
        schedule II at the discretion of the administrative 
        contracting officer (ACO).

Essentially the same information is set forth in the IFB at clause 
L-900(c).  IFB at 27.  The solicitation also advised at clause M-16C 
that the composite hourly rate would be used for evaluation purposes, 
and "the amount proposed for the first delivery order (CLIN 0003) will 
be used in conjunction with all other line items in evaluating the 
offeror's total proposed price."  Id.

Upon receipt of bids from Booth, Redcon, and Mesa, the Air Force 
noticed two problems.  First, the bids seemed to show that the 
companies had two different interpretations of the impact of CLIN 0003 
on the total price for the base year.  Redcon and Mesa had added the 
prices for CLIN 0003 and CLIN 0001 together to compute their total 
base year price.  In contrast, Booth's total price was the same as its 
CLIN 0001 price.  Second, the Air Force noticed that Redcon had not 
entered individual labor rates on schedule 2.  Instead, Redcon had 
typed "N/A" on schedule 2, apparently indicating that Redcon did not 
believe the information was needed by the Air Force.

In response to the discrepancy in the treatment of CLIN 0003, the 
contracting officer asked each bidder to clarify its bid for the base 
year.  At that time, Booth confirmed that its price for CLIN 0003 was 
included in its price for CLIN 0001; therefore, the total price was 
the same as the CLIN 0001 price.  As a result of Redcon's failure to 
provide individual labor rates under schedule 2, the contracting 
officer concluded that the bid was nonresponsive.  At the conclusion 
of the agency's review, the final bid amounts were calculated as 
follows:

                    Booth          $ 2,468,100
                    Redcon         $ 2,517,150
                    Mesa           $ 2,807,372              

After determining that Booth was the lowest-priced, responsive and 
responsible bidder, the Air Force awarded the contract to Booth on 
June 26, 1997.  

On July 11, Redcon filed a protest with our Office arguing that its 
bid was wrongly rejected as nonresponsive, and that Booth was 
improperly allowed to include its CLIN 0003 price within its price for 
CLIN 0001.  Since Booth's CLIN 0003 price was $76,696.66, Redcon 
correctly pointed out that if Booth had been required to add its CLIN 
0003 price to its CLIN 0001 price--as did Redcon and Mesa--Redcon 
would have been the lowest-priced bidder.[1]

By letter dated August 13, the Air Force advised our Office that it 
was taking corrective action in response to the protest by revising 
its solicitation, and requesting new bids from all bidders, including 
Redcon.  Underlying this decision, the record shows that the Air Force 
concluded that it had improperly rejected  Redcon's bid for failing to 
complete schedule 2.  Administrative Record (Admin. Rec.) at 110421.  
In addition, the Air Force concluded that the IFB should be revised to 
clearly state whether the price for CLIN 0003 was to be included 
within the basic performance period price.  Id.  In response to these 
actions, Booth filed its request for injunctive relief with the court 
on September 11.

ANALYSIS

With respect to the first question put to our Office by the court, 
regarding the likelihood of Redcon's success in its protest 
challenging the rejection of its bid as nonresponsive, we conclude 
that a decision on the merits would have upheld Redcon's contention.

Redcon's bid was initially rejected by the Air Force as nonresponsive 
to the IFB because it failed to include an entry under schedule 2 at 
the end of the price schedule.  Under schedule 2, bidders were to 
identify the individual labor categories and hourly rates to be paid 
by the bidder for calendar years 1997 through 2002.  Ultimately, 
however, the Air Force concluded that Redcon's failure to complete 
schedule 2 was not a matter of responsiveness.  

The test for responsiveness is whether the bid as submitted is an 
offer to perform, without exception, the exact thing called for in the 
solicitation, so that upon acceptance the contractor will be bound to 
perform in accordance with all of the IFB's material terms and 
conditions.  Mike Johnson, Inc., B-271943, Aug. 14, 1996, 96-2 CPD  para.  
66 at 2.  Material terms of a solicitation are those which affect the 
price, quantity, quality, or delivery of the goods or services 
offered, Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD  para.  115 
at 4, and the Federal Acquisition Regulation (FAR) authorizes 
rejection of any bid that fails to conform to them.  FAR  sec.  14.404-2.  
A solicitation requirement is not material, however, if the government 
does not need the information in order to evaluate bids or the 
information otherwise does not have an impact on the bidder's promise 
to perform as specified.  American Spare Parts, Inc., B-224745, Jan. 
2, 1987, 87-1 CPD  para.  4 at 3.

We think Redcon's failure to complete schedule 2 at the end of the 
price schedule was not a material omission from its bid.  First, the 
individual labor rates and categories in schedule 2 were not used to 
determine a bidder's price.  Rather, the schedule 2 rates were 
requested to permit the agency to price future delivery orders if the 
use of such rates would lead to a lower overall price for the delivery 
order than the composite rate.  To evaluate bid prices, the IFB 
clearly advised that the agency would use the bidder's composite 
hourly rate.  IFB, clause M-16C.  Since Redcon provided its composite 
rate for each performance period, the agency had no difficulty 
determining Redcon's bid price.

As an example of the immaterial nature of this omission on the 
evaluation of bid prices, the Air Force's brief considers a 
hypothetical bidder who completes schedule 2 using individual rates 
far in excess of the average composite rates of approximately $25 per 
hour.  Air Force Memorandum of Law, Nov. 13, 1997, at 12 n.6.  Even if 
we assume this bidder entered rates of $1,000 per hour on schedule 2, 
it would still be evaluated as the low bidder and receive award if its 
composite rates (together with its price for the first delivery order) 
were the lowest received.  In addition, the agency would be in no 
different a position in the circumstance where the low bidder inserts 
very high individual rates in schedule 2 than it is in the situation 
here--where a bidder has failed to complete schedule 2.  Either way, 
the bidder receives the award, and the contract price will never be 
higher than the composite rate identified for each CLIN (and for the 
first delivery order).

Redcon's failure to complete schedule 2 also had no impact on its 
obligation to perform the drafting services required here.  Redcon's 
bid appropriately promised to provide all the drafting services 
ordered during the base year and each of the option years at its 
composite hourly rate.  Since Redcon's failure to complete schedule 2 
had no impact on bid evaluation or on Redcon's promise to perform as 
offered, we conclude that the Air Force properly decided that Redcon's 
bid was, in fact, responsive.  See American Spare Parts, Inc., supra, 
at 4.  

Nonetheless, the initial review of bids led the Air Force to conclude 
that Redcon's bid was not the lowest received, and thus, even though 
its bid was ultimately viewed as responsive, Redcon would not be in 
line for award.  As discussed below, however, an ambiguity in the bid 
schedule made it impossible to determine which bid offered the lowest 
price to the government.  At this juncture the Air Force elected to 
cancel the solicitation and begin anew.

With respect to the court's second question--whether the agency 
appropriately decided to cancel and resolicit bids in this 
procurement--we conclude that the  agency's actions were proper.  

Because of the potential adverse impact on the competitive bidding 
system of cancellation after bid prices have been exposed, a 
contracting agency must have a compelling reason to cancel an IFB 
after bid opening.  FAR  sec.  14.404-1(a)(1); Days Inn Marina, B-254913, 
Jan. 18, 1994, 94-1 CPD  para.  23 at 2.  A compelling reason to cancel a 
solicitation exists where material solicitation terms are ambiguous or 
in conflict.  P.J. Dick, Inc., B-259166, B-260333, Mar. 6, 1995, 95-1 
CPD  para.  131 at 4.  Contracting officials have broad discretion to 
determine whether a compelling reason to cancel exists, and our review 
is limited to considering the reasonableness of that decision.  H. 
Angelo & Co., Inc., B-260680.2, Aug. 21, 1995, 95-2 CPD  para.  74 at 3.

In its brief detailing the decision to revise the pricing schedule in 
this IFB and resolicit, the Air Force claims that either of the 
problems identified in the pricing schedule--the uncertainty about 
whether CLINs 0001 and 0003 were additive, or the uncertainty about 
completing schedule 2--would have formed a valid basis for the 
agency's actions.  We conclude that the CLINs 0001 and 0003 ambiguity 
was sufficient to support the cancellation decision.

As discussed above, the record here shows that the IFB was ambiguous 
because it provided no explanation about whether CLINs 0001 and 0003 
were additive in determining the total price for the base year.  The 
ambiguous nature of the IFB is highlighted by the fact that the 
bidders took differing approaches to completing the price schedule.  
Booth concluded that the IFB's base year staff-hour estimate included 
the effort for the first delivery order.  Hence, Booth's CLIN 0001 
price and its total price for the base year were the same.[2]  The 
other two bidders, Redcon and Mesa, concluded that the base year 
staff-hour estimate did not include the effort for the first delivery 
order. These bidders added their prices for CLINs 0001 and 0003 to 
calculate the total price for the base year.

Since the ambiguity in the IFB about the relationship between CLINs 
0001 and 0003 caused the bidders to use different approaches in 
completing the price schedule, the agency could not tell from the face 
of the bids which bid offered the lowest price to the government.  
Specifically, the record shows that Booth's bid was low only if the 
bid's base year total included the price for CLIN 0003 (an 
interpretation of the schedule inconsistent with its interpretation by 
the other bidders, and apparently inconsistent with the agency's 
interpretation).  If Booth's base year total failed to include the 
price for CLIN 0003 (and thus the total needed to be adjusted upward), 
Booth's bid would have been second low.[3]  Rather than permit Booth, 
or any other bidder, to choose which reading of the schedule should 
prevail, we believe the agency reasonably concluded that the 
solicitation was ambiguous, that it misled bidders into competing on 
an unequal basis, and that it should be revised.  P.J. Dick, supra, at 
4 (IFB properly canceled where solicitation was ambiguous about 
whether state sales taxes should be included in bid prices and the 
record showed that bidders had differing approaches to including such 
taxes in their bids); see Temps & Co., 65 Comp. Gen. 640, 643 (1986), 
86-1 CPD  para.  535 at 4 (IFB that failed to advise bidders whether option 
prices would be evaluated in determining the successful bid was 
defective). 

As a final matter, we note that Booth argues that there was no 
compelling reason for the Air Force to cancel this invitation and 
resolicit because Redcon's assertion that the IFB was ambiguous was 
untimely, and this portion of the protest should therefore have been 
dismissed on procedural grounds.  Booth points out that under our Bid 
Protest Regulations, a protest based upon an alleged impropriety in a 
solicitation which is apparent prior to bid opening, must be filed 
prior to bid opening.  4 C.F.R.  sec.  21.2(a)(1) (1997).  In Booth's view, 
the ambiguity in the IFB was an obvious defect in the IFB and any 
challenge to it was therefore untimely.  Thus, Booth contends that 
since Redcon could not have prevailed at GAO, the Air Force could have 
ignored Redcon's complaints and proceeded with award to Booth.

In our view, the propriety of the Air Force's actions is unrelated to 
whether Redcon's challenge to the rejection of its bid raises a 
question that could have been asked prior to bid opening.  As the 
discussion above illustrates, the agency had no basis for selecting 
one method of bid evaluation over the other to determine the total 
price for the base performance year, as either approach appears 
equally reasonable.  Thus, with or without a protest from Redcon, or 
any other bidder, the Air Force could reasonably conclude--at any 
time--that the material flaw in the IFB's pricing schedule provided a 
compelling basis for canceling this solicitation, and beginning anew.  
See Earthworks of Sumter, Inc., B-232067.2, Jan. 5, 1989, 89-1 CPD  para.  9 
at 4.  

Comptroller General 
of the United States

1. With the addition of the $76,696.66 bid for CLIN 0003, Booth's 
total bid would have risen to $2,544,796.66.

2. As also explained above, the contracting officer asked Booth to 
verify its bid for the base year, and whether the base year bid 
included the price for CLIN 0003.  Booth verified that the bid was 
correct, and that the price for CLIN 0003 was included within its base 
year total.  Admin. Rec. at 110009-10.

3. While Booth purported to "verify" its bid after bid opening, 
nothing on the face of the bid indicated which reading of the bid was 
intended at the time the bid was submitted.  Thus, Booth's ambiguous 
bid could not be accepted here because the bid was low under only one 
reading of the bid; under the other reasonable reading, Booth's bid 
was not low.  A low bid with an ambiguity in its price may be accepted 
if the ambiguity in the bid does not affect the evaluation, the bid is 
low under either interpretation of the ambiguity, and the low bidder 
agrees to accept the interpretation which is more favorable to the 
government.  Grove Roofing, Inc., B-233747, Feb. 23, 1989, 89-1 CPD  para.  
196 at 3.  However, if the bid is low under only one of the two 
reasonable interpretations, the bid must be rejected.  Id.  There is 
no basis to allow a bidder, after bid opening, to decide which 
interpretation should be applied.