BNUMBER: B-278227
DATE: January 9, 1998
TITLE: Constructive Solutions, Inc., B-278227, January 9, 1998
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Matter of:Constructive Solutions, Inc.
File: B-278227
Date:January 9, 1998
William E. Coons, Ph.D., for the protester.
Alton E. Woods, Esq., and James L. Weiner, Esq., Department of the
Interior, for the agency.
Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency had a compelling reason to cancel solicitation after bid
opening where an ambiguity in the solicitation apparently caused
several bidders, including protester, to include the price for only
one alternative under a line item, rather than both alternatives, as
the agency intended, and where the agency needed prices for both
alternatives as part of the determination of which alternative met its
needs.
DECISION
Constructive Solutions, Inc. (CSI) protests the decision to cancel
invitation for bids (IFB) No. NOO-97-31, issued by the Bureau of
Indian Affairs (BIA), Department of the Interior, for environmental
cleanup work at the Kaibeto Boarding School in Kaibeto, Arizona.
We deny the protest.
The IFB contemplated the award of a contract to furnish all materials,
labor, equipment and supervision for the removal of underground
storage tanks (UST), aboveground storage tanks (AST), and disposal of
contaminated soil. The first sentence in the bid schedule stated that
"[a]ll of the bid proposals for the items below is required." Below
this sentence, the schedule contained the following three items:
Item No.
Bid Amount:
1. Remove and dispose of all USTs and ASTs,
and related appurtenances, pipes,
supply and return lines in accordance with
applicable Federal, State and Tribal regulations.
$______
2. Remove all contaminated soil testing 100 PPM
[parts per million] or greater (approximate quantity
[+ or -] 1,500 cubic yard) and haul it off to an
approved landfill for remediation and disposal.
$______
OR
Bio-remediate approximately [+ or -] 1,500 cubic
yards of contaminated soil at a place designated
by the Contracting Officer within the school
compound. The soil must be remediated until TPH
[total petroleum hydrocarbon] levels are less
than 100 PPM. The process may not take more than
six months.
$______
3. Take additional soil samples for TPH (EPA Method
8015 modified for diesel) cost per sample.
$______
Ten bids were received. Four of the bids, including CSI's, failed to
include prices for both options under item 2. The contracting officer
reportedly intended the first sentence of the schedule--"[a]ll of the
bid proposals for the items below is required"--to make clear that BIA
intended bidders to price all items, including both options in item 2.
In light of several of the bidders' failure to do so, she concluded
that the IFB was ambiguous and that the ambiguity had led several
bidders (including the protester) to submit what the agency considered
nonresponsive bids. Thereafter, for this and other reasons, BIA
canceled the solicitation.
CSI argues that the cancellation was improper. Regarding the option
prices under item 2, CSI maintains that the IFB in fact clearly did
not require prices for both options. According to the protester,
since the first sentence in the schedule refers to "items" rather than
"options" or each "bid amount," only one price per line item was
necessary. CSI concludes that cancellation was not justified by any
confusion regarding item 2, and that it should receive the award as
the low bidder.
An agency generally may cancel an IFB after bid opening and exposure
of prices only where there is a compelling reason to do so. Federal
Acquisition Regulation sec. 14.404-1(a)(1); City Wide Press, Inc.,
B-231469, Aug. 10, 1988, 88-2 CPD para. 127 at 2. Whether cancellation is
warranted is a decision for the contracting agency, whose
determination we will not disturb unless it is shown to be
unreasonable. Id. at 2-3. In this regard, we generally consider
cancellation after bid opening to be appropriate when an award under
the solicitation would not serve the government's actual needs.
Berendse & Sons Paint Co., B-262244, Nov. 21, 1995, 95-2 CPD para. 235 at
3.
Here, BIA's decision to cancel the solicitation is unobjectionable.
The agency explains that, in a last-minute change to the IFB before it
was issued, the second (bioremediation) alternative was added to item
2. This change apparently reflected an intent to use the alternative
prices as one of the considerations in determining which of the two
methods to select, although the IFB did not clarify how the agency
would do so or, indeed, how the agency would take into account any
factor except price in the context of an invitation for bids. In any
event, the failure of several of the bids, including CSI's, to include
prices for both item 2 alternatives made clear to the agency that its
solicitation was ambiguous and did not provide the agency a basis to
select an offer that would satisfy its needs. We agree that the
solicitation was ambiguous in this regard; it also appears deficient
in not making clear how the agency would have selected a firm for
award even if all bidders had included prices for both item 2
alternatives. Under these circumstances, and because of the doubt
that award under the solicitation would have served the government's
actual needs, the cancellation was proper.
CSI also argues that certain statements by the contracting officer in
connection with the cancellation are untrue and evidence agency bad
faith--for example, the statement that the "procurement was still
under review" prior to the cancellation, when an awardee actually had
been selected, and the statement that the cancellation was underway
before BIA learned CSI was contemplating a protest. To establish bad
faith, a protester must present virtually irrefutable proof that
government officials had a specific and malicious intent to injure the
protester. South Texas Turbine Supply, B-272163, Sept. 5, 1996, 96-2
CPD para. 105 at 4. Even if we were to assume, arguendo, that the
protester is correct in its claim that the contracting officer's
statements were untrue, they in no way constitute evidence of an
intent to injure CSI. As we have concluded above, the cancellation
was proper based on the fact that award under the IFB will not meet
the agency's needs; there has been no showing that the deficiency in
the competition which led to this conclusion resulted from agency bad
faith.
The protest is denied.
The Comptroller General
of the United States