BNUMBER:  B-279837 
DATE:  July 2, 1998
TITLE: Temp Air Company, Inc., B-279837, July 2, 1998
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Matter of:Temp Air Company, Inc.

File:     B-279837

Date:July 2, 1998

Larry D. Harris, Esq., and Sheila C. Stark, Esq., Piper & Marbury, for 
the protester.
J. Stephen Brophy, Esq., U.S. Coast Guard, 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.  Protester's bid was properly rejected as nonresponsive where the 
rejected bid substituted photocopies of bid schedule pages from the 
base performance period for pages covering the option periods.  The 
substituted pages did not contain the contract line item numbers 
covering the option year effort, creating ambiguity about whether the 
bidder was committed to providing the option year effort, and, if so, 
at what price.  In addition, the substituted pages, in one case, 
specified a performance period shorter than the option year which the 
bidder intended the substitute page to cover.  

2.  Contracting officer's decision not to permit bid correction is 
reasonable where the bid is nonresponsive on its face, since 
responsiveness cannot be established after bid opening.

DECISION

Temp Air Company, Inc. protests the rejection of its low bid as 
nonresponsive under invitation for bids (IFB) No. DTCG40-98-B-40002, 
issued by the Department of Transportation, United States Coast Guard, 
for operations, maintenance and repair at the United States Coast 
Guard Yard at Curtis Bay, Maryland.  Temp Air argues that the Coast 
Guard's rejection of its bid was based upon an erroneous conclusion 
that certain substitute pages used in Temp Air's bid schedule altered 
material terms of the invitation.

We deny the protest.

The IFB, issued October 17, 1997, contained a bid schedule calling for 
bids for a 10-month base period followed by four 1-year options, and 
provided that bids would be evaluated for award by adding the price 
for all the options to the price for the base period.  IFB  sec.  M.4, 
M.6.  The IFB anticipated award of a fixed-priced contract.  In 
addition, the IFB indicated that award would be made on an "all or 
none" basis, and that failure to submit a bid for any item would 
result in the entire bid being rejected as nonresponsive.  IFB  sec.  M.5.  
This procurement was also reserved for exclusive small business 
participation.

As originally issued, pages 2 through 31 of the IFB contained the bid 
schedule, comprised of numerous contract line item numbers (CLIN) and 
sub-CLINs.  However, the original version of the IFB bid schedule did 
not contain a page 23.  By amendment No. 0003, issued on December 4, 
the agency provided the omitted page 23, and issued replacement pages 
for the schedule pages numbered 4, 10, 16, 22, and 28.  The five 
replacement pages added a new requirement for the contractor to 
collect recycled paper during the 10-month base period (CLIN 0001AA2), 
and reflected this added work at the same point in the schedule for 
each of the 4 option years.[1]  The new page 23 added CLIN 0004B1, for 
Level III work orders for option year 3.  The IFB already contained a 
similar requirement in the 10-month base period, and in option years 
1, 2, and 4.

At the December 30, 1997 bid opening, Temp Air was the apparent low 
bidder based on a conclusion that its bid price was $6,136,553; the 
next low bid was submitted by WW Contractors, Inc., with a price of 
$6,606,493.19.  After bid opening, several events delayed the 
procurement:  (1) there were two agency-level protests from the third 
low bidder challenging award to either Temp Air or WW Contractors; (2) 
the contracting specialist noticed several mathematical errors in Temp 
Air's bid which the company was allowed to correct; and (3) the agency 
reached an initial conclusion that Temp Air was not 
responsible--followed by a request for review by the Small Business 
Administration, which was ultimately withdrawn.  The contracting 
officer explains that because of these intervening activities, it was 
not until March 2 that he noticed certain problems with the bid that 
caused him to question its responsiveness.  On March 24, the 
contracting officer determined, in writing, that the bid was 
nonresponsive and could not be accepted.  On April 7, award was made 
to WW Contractors, Inc., and this protest followed.

Temp Air's bid was viewed as nonresponsive because of the company's 
handling of the bid schedule replacement pages included in amendment 
No. 0003.  The record shows that while Temp Air acknowledged receipt 
of amendment No. 0003 on the front of its bid, and used some of the 
replacement pages provided in the amendment, in two instances--pages 
10 and 23--it used neither the pages provided by amendment No. 0003, 
nor the original schedule pages. 

With respect to replacement page 10, which contained CLINs 0002AA1, 
0002AA2, and 0002AA3 (all of which represent effort within the first 
option year), Temp Air instead submitted a completed photocopy of 
replacement page 4, which contained CLINS 0001AA1, 0001AA2, and 
0001AA3 (representing the same effort within the 10-month base 
performance period).  Temp Air inserted this completed photocopy of 
replacement page 4 in the bid schedule in front of the original page 
10, and marked a large "X" over the entirety of the original page 10.  
Temp Air did not change the page number at the top of the page--it 
reflected "page 4"--and did not change the CLIN numbers.  

Similarly, instead of using amendment No. 0003's page 23 (which was 
initially omitted from the bid schedule), Temp Air inserted into the 
schedule at that point a completed photocopy of the bid schedule's 
page 5, with the page number crossed out, and the number 23 inserted.  
Page 5 contained CLIN 0001B1, which covered certain effort within the 
10-month base performance period, while page 23 (provided for the 
first time with amendment No. 0003) contained CLIN 0004B1, which 
covered the same effort in option year three.  While in this case Temp 
Air changed the page number from 5 to 23, it again did not change the 
CLIN number.  

Temp Air argues that the decision to reject its bid as nonresponsive 
was unreasonable because the contracting officer clearly understood 
the bid, and also contends that the agency acted improperly by not 
giving Temp Air an opportunity to correct any problem with its bid 
caused by the use of these two substitute pages.

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.  The required commitment to the terms of an IFB need not be 
made in precisely the manner specified by the solicitation; all that 
is necessary is that the bidder, in some fashion, commit itself to the 
solicitation's material requirements.  Engineering Techs. Assocs., 
Inc., B-250567, Feb. 10, 1993, 93-1 CPD  para.  121 at 3-4.      

In support of its position that its bid was responsive, Temp Air 
points to the fact that the contracting officer initially assumed that 
the photocopied pages were intended as substitutes for pages 10 and 
23, and calculated Temp Air's total bid price based on that 
assumption.  The contracting officer's action is not dispositive, 
however, of the key question:  whether, as a legal matter, the bid 
committed Temp Air to the material requirements of the IFB.  Our 
review of the bid leads us to conclude that it does not contain a 
legally binding commitment to perform the solicited work in several 
areas.  Specifically, the bid as submitted does not include any 
recognition of, or prices for, several CLINs.  Instead, at the place 
in the bid schedule where these CLINs should have appeared, Temp Air's 
bid repeats the CLINs for the same effort in the base period, and in 
each case repeats the same price for the effort as for the base period 
effort.  

A determination that Temp Air's bid is responsive would require the 
agency to make the following two assumptions:  (1) that the base 
period CLINs identified on the substitute bid schedule pages can be 
replaced with the option year CLINs; and (2) that the price stated is 
not merely a repetition of the price for the base period CLIN, but 
applies to the option year price as well.  In our view, the necessity 
of these assumptions to determine the responsiveness of the bid 
illustrates the bid's ambiguity.  Since Temp Air's bid at no point 
identifies the missing CLINs, there is no clear promise to perform the 
work required by CLINs 0002AA1, 0002AA2, 0002AA3, and 0004B1, 
rendering the bid nonresponsive.  See Lamb Eng'g & Constr. Co., 
B-261240, Aug. 25, 1995, 95-2 CPD  para.  87 at 4.  

Equally fatal for Temp Air's bid is the text at the top of the bid 
schedule's page 5, which Temp Air photocopied and used as a substitute 
for page 23.  This text states that the bid applies to the "ten month 
period from the contract operations date," and when inserted into the 
bid schedule at page 23, reduces the performance period by 2 months 
from the full 12-month performance period covered by option year 3.  
Since Temp Air's bid modifies, or at least casts doubt upon its 
acceptance of, the option year performance period, the bid must be 
rejected as nonresponsive.  See NVT Techs., Inc., B-256072, 
B-256072.2, May 6, 1994, 94-1 CPD  para.  297 at 3.

As a final matter, we disagree with Temp Air's contention that the 
agency acted improperly because it did not identify this problem 
immediately after bid opening, and because it did not give the company 
an opportunity to correct what Temp Air contends is a mere clerical 
error.  Regardless of when the agency understood that the bid was 
incomplete, the bid could not be made responsive by post-bid opening 
explanation or correction.  Federal Acquisition Regulation  sec.  14.407-3 
explains that the authority to permit correction of mistakes in bids 
may not be used to make nonresponsive bids responsive.  Since 
responsiveness must be determined from the face of the bid itself as 
of the time of bid opening, to have allowed Temp Air to correct the 
mistake in its bid would have been tantamount to permitting the firm 
to submit a new bid.  Gladding Braided Prods., B-260885, July 25, 
1995, 95-2 CPD  para.  45 at 4.

The protest is denied.

Comptroller General
of the United States

1. Thus, the recycled paper requirement was also added under CLINs 
0002AA2, 0003AA2, 0004AA2, and 0005AA2.