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