BNUMBER:  B-278205 
DATE:  January 6, 1998
TITLE: The Lisle Company, B-278205, January 6, 1998
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Matter of:The Lisle Company

File:     B-278205

Date:January 6, 1998

Christopher L. Meacham, Esq., Meacham & Earley, P.C., for the 
protester.
Donald M. Conner for Conner Brothers Construction Company, Inc., an 
intervenor.
William A. Hough, Esq., and Gregory W. Vanagel, Esq., Department of 
the Army, for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest challenging the acceptance of a modified bid on the basis 
that the modification rendered the intended price ambiguous is denied 
where the bid remains low under any interpretation of the 
modification.

2.  Allegation that agency accepted a late bid modification is denied 
where it is based on speculation and is essentially contradicted by 
the record.

DECISION

The Lisle Company protests the award of a contract to Conner Brothers 
Construction Company, Inc., under invitation for bids (IFB) No. 
DACA21-97-B-0053, issued by the Department of the Army, Corps of 
Engineers, for the construction of a rail loading facility at Fort 
Benning in Georgia.  Lisle maintains that the agency improperly 
accepted a modification to Conner's bid.

We deny the protest.

BACKGROUND

The IFB, issued on August 26, 1997, called for a base bid consisting 
of nine line items, Nos. 0001 through 0009, with additive work 
included in line item Nos. 0010 through 0013.  The bid schedule 
required bidders to enter five totals as follows:  base bid; base bid 
plus additive No. 1; base bid plus additives Nos. 1 and 2; base bid 
plus additives Nos. 1 through 3; and base bid plus additive items Nos. 
1 through 4.  The IFB provided that the low price would be calculated 
by determining which bid offered "the lowest aggregate amount for the 
. . . base bid . . . plus . . . (in the order stated in the list of 
priorities in the bid schedule) those additive . . . items that 
provide the most features within the funds determined available" for 
the project.  The funds available for award were $8,403,813.

Eight bids were opened on September 25 at 2 p.m.  The awardee and the 
protester filled out their bid schedules as follows:

                                                  Conner                         
Lisle

Base bid                    $8,000,000                    $7,795,443
Base + Add. 1                8,175,000                      7,790,999
Base + Adds. 1-2             8,426,000                      8,302,651
Base + Adds. 1-3             8,497,000                      8,372,778
Base + Adds. 1-4             9,171,809                      8,965,692

According to the agency, but questioned by Lisle (as discussed in more 
detail below), Conner's bid envelope contained a letter on company 
stationery, addressed to the agency, dated September 25 and signed by 
John B. Conner, Vice President of the firm, which provided in 
pertinent part as follows:

         RE:   Bid Under Invitation
                 DACA21-97-B-0053
                 RAIL LOADING FACILITY
                 Fort Benning, Georgia
                 To Be Opened: September 25th, 1997 at 2:00 P.M.

         Gentlemen:

         Please XXX deduct the lump sum of $  [157,000]                         
XX from
                              [0001 JBC]
         our Bid Item 0008 and modify totals accordingly.[1]

The contracting officer states that, at bid opening, she deducted the 
amount of $157,000 from Conner's base bid only and announced the 
totals as follows:

                                                  Conner                         
Lisle

Base bid                    $7,843,000                    $7,795,443
Base + Add. 1                8,175,000                      7,990,999
Base + Adds. 1-2             8,426,000                      8,302,651
Base + Adds. 1-3             8,497,000                      8,372,778
Base + Adds. 1-4             9,171,809                      8,965,692

Because Lisle's bid was apparently low within the funding limitation 
for the base bid plus additives Nos. 1 through 3, the protester was 
identified at bid opening as the prospective awardee subject to change 
upon further analysis.

The agency states that, on the following day, September 26, it 
realized that the $157,000 amount should have been deducted from 
Conner's original bid entries for the base bid and various additive 
item combinations so that the appropriate comparative totals as 
modified by the September 25 letter were, in fact, as follows:

                                                  Conner                         
Lisle

Base bid                    $7,843,000                    $7,795,443
Base bid + Add. 1            8,018,000                      7,990,999
Base bid + Adds. 1-2         8,269,000                      8,302,651
Base bid + Adds. 1-3         8,340,000                      8,372,778
Base bid + Adds. 1-4         9,014,809                      8,965,692

Based on this analysis, the agency awarded Conner the contract for the 
base items plus additives Nos. 1 through 3, because the modified total 
of $8,340,000 provided the most features within the funding limitation 
and was below Lisle's bid for the same items.  This protest followed.

PROTEST AND ANALYSIS

Lisle raises two issues in its protest:  that Conner's bid is 
ambiguous as to price, and that the purported modification was not 
submitted prior to bid opening. 

As to the first issue, Lisle alleges that the insertion of the figure 
"0001" accompanied by the initials "JCB" in the September 25 
modification letter, without striking the typewritten figure "0008" 
and without initialling the phrase "Bid Item 0008," renders the 
purported modification invalid because it creates an ambiguity as to 
whether the awardee intended the downward modification of $157,000 to 
apply to item No. 0001, item No. 0008, or both items.  Lisle therefore 
argues that, since the bid price is not fixed, the bid should be 
rejected.

A bid which is ambiguous as to price need not be rejected if it is low 
under all possible interpretations; the actual price may be verified 
after bid opening.  The Ryan Co., B-238932, June 13, 1990, 90-1 CPD   para.  
557 at 4.  Here, if the modification is understood to apply to either 
item No. 0001 or item No. 0008, both of which are components of the 
base bid, and the downward adjustment of $157,000 is carried through 
to the entry for the base bid plus Additive Nos. 1 through 3, its 
acceptance results in a low figure of $8,340,000, versus Lisle's 
counterpart entry of $8,372,778.  If the modification is intended to 
apply to both items Nos. 0001 and 0008 and carried through to the 
entry for the base bid and Additives Nos. 1 through 3, it results in a 
downward modification of $314,000, which is lower than Lisle's 
counterpart figure by an even greater amount.  Because Conner's bid is 
low under any possible scenario, the alleged ambiguity presented by 
the text of the modification letter does not require the rejection of 
the bid.  Id.

As to the second issue, Lisle maintains that the modification letter 
was not received prior to bid opening and that the modification was 
not effectuated until the agency received confirming correspondence 
from Conner on September 26.  This allegation is based on the accounts 
of two Lisle representatives who state that, when they examined 
Conner's bid on September 25 at the opening, they did not see the 
modification letter.  The agency and the awardee maintain that the 
letter was included in the sealed envelope containing Conner's bid 
which was submitted to the agency prior to 2 p.m on September 25.

As part of the protest process, our Office conducted a telephonic 
hearing during which Conner's witness (who was in attendance at the 
bid opening) testified that he made the handwritten notations to the 
September 25 letter, sealed the annotated letter in the envelope 
containing the firm's bid and submitted the package to the contracting 
officer prior to 2 p.m. on September 25.  The contracting officer 
testified that the letter was contained in the envelope she received 
prior to 2 p.m. and opened soon thereafter.  Lisle's witnesses (who 
were also in attendance at the bid opening) testified that, when they 
examined Conner's bid, they did not see the September 25 letter.  

All of these witnesses testified that, when the contracting officer 
read the bid prices at the opening, she stated that Conner's bid price 
for the base items was $7,843,000.  Lisle's witnesses conceded that 
they could not explain how this modified total could have been read at 
opening if the $157,000 downward modification letter was not in the 
government's possession prior to opening.  There was no testimony to 
contradict the contracting officer's testimony (and that of Conner's 
representative) to the effect that the only package delivered by 
Conner to the contracting officer on September 25 was the envelope 
containing the bid and the modification letter.

Lisle's allegation is essentially the speculation that, because its 
representatives did not see the modification letter when they examined 
Conner's bid, the modification had to have been submitted late.  
Speculation that agency officials improperly permitted a bidder to 
modify its bid after opening is insufficient to support sustaining a 
protest where the agency denies that a late modification was permitted 
and the record contains no evidence that a late modification was, in 
fact, permitted.  J & J Maintenance, Inc., B-250110, Jan. 8, 1993, 
93-1 CPD  para.  25 at 4.  Further, Lisle's theory is essentially 
contradicted by the fact that the contracting officer stated at 
opening that she had a bid modification and read an appropriately 
modified base bid total, which, in our view, clearly establishes that 
the agency did have the September 25 letter in hand prior to the time 
set for bid opening.  Accordingly, we have no basis for questioning 
the agency's acceptance of Conner's bid as modified.

The protest is denied.

Comptroller General
of the United States

1. The "X's" in bold type represent handwritten strike marks through 
apparently pretyped words.  The entries within brackets were 
handwritten.