BNUMBER: B-278725
DATE: March 6, 1998
TITLE: Mobile Dredging & Pumping Company, B-278725, March 6, 1998
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Matter of:Mobile Dredging & Pumping Company
File: B-278725
Date:March 6, 1998
Donald J. Walsh, Esq., Scaldara & Potler, for the protester.
George M. Kingsley, Esq., and Joseph J. Cox, Esq., U. S. Army Corps of
Engineers, for the agency.
Sylvia Schatz, Esq., David A. Ashen, 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 requirement in solicitation did not meet its actual
needs.
DECISION
Mobile Dredging & Pumping Company, Inc. protests the U.S. Army Corps
of Engineers' cancellation of invitation for bids (IFB) No.
DACW31-97-B-0061, for dredging of the Dalecarlia Reservoir at the
Washington Aqueduct in the District of Columbia.
We deny the protest.
The Washington Aqueduct provides drinking water to the District of
Columbia and parts of Virginia, utilizing the Dalecarlia Reservoir as
one of its settling areas prior to water treatment. The solicitation
required dredging the reservoir of sediment and pumping the sediment
through a pipe to dewatering equipment, where the sediments or solids
will be separated from the water; the sediment then is to be
discharged onto a concrete pad and hauled away, while the leftover
water will be discharged to a dewatering discharge pond and then
returned to the reservoir. The specifications permitted the
contractor to use a polymer to bond with the sediments so that they
may be separated and removed from the water. However, the
specifications imposed certain restrictions on the use of polymers
because, while most of the polymer is discharged with the dewatered
solids onto the concrete pad, some polymer remains in the filtrate
water--i.e., water that has been discharged from the dewatering
equipment.
Specifically regarding polymers, section 02482 of the specification,
entitled "Dredging, Dewatering, and Sediment Disposal," stated, in
relevant part, as follows:
7.6 Dewatering operations shall be accomplished through a number
of portable mechanical dewatering units. The portable dewatering
equipment shall be either centrifuges, plate and frame filter
presses or twin belt filter presses. Prior to entering the
dewatering equipment, the dredged material may be mixed with a
polymer, provided that the polymer is suitable for use with
potable water. The Contractor shall submit to the Government,
for approval, the polymer he will be using. The polymer shall be
acceptable for use in potable water and be approved by the
National Sanitation Foundation (NSF). Submittal shall have
complete information, characteristics about the product and
mixing proportions.
Five bids were received and opened. Mobile submitted the apparent low
bid of $3,428,950, and Sevenson Environmental Services, Inc. the
apparent second low bid of $3,468,060.
Subsequently, following an agency-level protest filed by Sevenson and
several exchanges with Mobile, the Corps realized that Mobile's
interpretation of paragraph 7.6 was inconsistent with the Corps's
intent. The record indicates that the Washington Aqueduct, the
drafter of the specification, intended paragraph 7.6 to impose NSF
Standard 60--a drinking water standard--as a limit on the amount of
polymer permitted to be added to the dredged sediment prior to
dewatering. It was Mobile's position, on the other hand, that the IFB
could not be read this way because (1) the NSF standard was not set
forth as a requirement, and (2) even if it were referenced, it is a
drinking water (i.e., post-dewatering) standard, and cannot be read as
limiting the amount of polymer added to remove sludge at the beginning
of the dewatering process.
Subsequently, the Corps (along with the Washington Aqueduct)
determined that paragraph 7.6 was defective because it did not clearly
state the agency's needs. Specifically, (1) as Mobile had asserted,
the IFB did not reference the NSF standard for drinking water; (2) in
any case, imposing the NSF standard as a limit on the polymer added
(rather than to the amount remaining after dewatering) would be
excessively strict (since the amount of polymer added before the
dewatering process does not equate directly to the amount of polymer
remaining in the treated water emitted from the dewatering equipment);
and (3) it did not contain an effective means of ensuring that treated
water would contain acceptable levels of polymers. The Corps
therefore canceled the IFB with the intention of resoliciting using an
amended paragraph 7.6.
Mobile argues that, contrary to the agency's determination, paragraph
7.6 was unambiguous in stating the agency's needs, and that the
cancellation therefore was improper.
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. City Wide Press, Inc., supra, at 2-3. 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.
Mobile's challenge to the cancellation is based on its view that the
IFB as written clearly did not limit the amount of polymers the
contractor would be allowed to add. This argument ignores the
agency's position that the NSF standard for polymers in drinking water
must be imposed on the contractor, and that the IFB as
written--whether or not ambiguous--does not ensure that water emitted
from the dewatering equipment will meet that standard. The record
supports the Corps's position. First, the Corps has determined that,
given that water from the dewatering process will be returned to a
reservoir used to produce drinking water, the NSF Standard 60 maximum
use limits for polymers must apply to the water emitted from the
dewatering equipment. We agree with Mobile's original position that
since the IFB did not reference the NSF standard, there was no basis
for reading the IFB as including it.
More importantly, since the agency now agrees with the protester that
it is not appropriate to apply the NSF standard to the amount of
polymer added to the dredged sludge (the approach on which the Corps
claims the IFB was based), the original IFB contains no effective
means of confirming that a particular standard has been met. In this
regard, although specification paragraph 7.6.7 provided for testing
filtrate water for solid content, the Corps has determined (and the
protester does not rebut the agency's position) that testing for
polymer in the filtrate water discharged into the reservoir would be
difficult at best, since there is no known standard test for
identifying the level of a particular polymer in the filtrate water
and the nature of any such test, even if feasible, would make it
exorbitantly costly to conduct. More fundamentally, the agency notes
the impracticality of testing for polymer at the end of the dewatering
process--after the contractor has set up its equipment and committed
to a particular method and mixture, which may or may not result in
acceptable polymer levels in the water discharged into the reservoir.
To ensure compliance with NSF Standard 60, the Corps reports that it
intends to amend paragraph 7.6 to impose the following requirements on
the contractor: (1) explicitly require that the contractor's
proposed NSF-approved polymer meet the NSF standard maximum use level
in the filtrate water; (2) require the contractor to submit to the
government for approval the polymer it intends to use, including
complete technical data, material characteristics, a material safety
data sheet, mixing proportions, and calculations verifying that the
polymer concentration that enters the reservoir from the dewatering
equipment for a peak production day will not exceed the NSF maximum
use level based on a specified reservoir flow rate (150 million
gallons per day); and (3) require the contractor to furnish the
government with a record of the amount of polymer used each day and
the total amount of filtrate water recycled into the reservoir.
We conclude that the IFB did not set forth the agency's actual needs,
and that the cancellation therefore was proper.
The protest is denied.
Comptroller General
of the United States