BNUMBER:  B-280974 
DATE:  December 14, 1998
TITLE: Red John's Stone, Inc., B-280974, December 14, 1998
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Matter of:Red John's Stone, Inc.

File:     B-280974

Date:December 14, 1998

D. Lee Roberts, Jr., Esq., Long, Weinberg, Ansley & Wheeler, for the 
protester.
Julia L. Perry, Esq., Department of Transportation, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of this 
decision.

DIGEST

Bid on road repair project on the Blue Ridge Parkway is nonresponsive, 
where it offers a contract performance schedule under which the 
contract would be completed before turf establishment (a material 
requirement of invitation for bids (IFB)) could be performed in 
compliance with the growing season specified in the IFB.

DECISION

Red John's Stone, Inc. protests the rejection of its bid under 
invitation for bids (IFB) No. DTFH71-98-B-00019, issued by the 
Department of Transportation, Federal Highway Administration, for 
roadway reconstruction and other related work on the Blue Ridge 
Parkway in Alleghany and Ashe counties, North Carolina.

We deny the protest.

The IFB, issued on June 26, 1998, contemplated the award of a 
fixed-price construction contract.  The IFB stated that award would be 
based on lowest total cost to the government, which would be the sum 
of the bid price plus the contract administrative cost associated with 
the length of the performance period stated in the bid.  IFB at B-1.  
The IFB stated an administrative cost of $500 per day.  Id.  The bid 
schedule included a summary page on which each bidder had to state the 
number of calendar days it would take to complete all project work 
from a construction start date of November 16.  IFB at B-8.  The IFB 
required that bidders offer a performance period not to exceed 180 
calendar days for completion of all contract work.  IFB at A-4, B-1.

The bid schedule included 42 line items covering all of the work 
required under the contract and stated the estimated quantities of 
such work where other than lump-sum prices were required.  The line 
items included hot asphalt concrete pavement, pavement markings, 
furnishing and placing topsoil, and turf establishment.  IFB at B-2 - 
B-7.  

The IFB incorporated the project plans/drawings and the agency's 
Standard Specifications for Construction of Roads and Bridges on 
Federal Highway Projects, FP-96, 1996, which stated the requirements 
for the work to be performed under the contract.  IFB at A-1.  These 
requirements included the minimum temperature requirements for 
placement of hot asphalt concrete mix (FP-96  sec.  401.07 at 241), the 
minimum temperature requirements for painting pavement markings (FP-96  sec.  
634.05 at 636), the required ground conditions for placing topsoil 
(FP-96  sec.  624.04 at 609), and the turf establishment season (FP-96  sec.  
625-03 at 611).  Although FP-96 did not state the dates of the local 
growing season for turf establishment, the IFB supplemented and 
amended the requirements to state that seed was to be applied during 
the growing season of "April 1 to September 30."  IFB at J-14.

Bid opening was on July 29.  The agency received four bids.  Red 
John's bid price of $299,937.55 was lowest.  The next lowest bid price 
was $342,514.75.  Red John also bid the shortest performance period of 
98 days.  All of the other bids offered performance periods of 180 
days.  Because of its short performance period, Red John's bid 
represented the lowest evaluated cost to the government by an even 
wider margin (over $80,000).  Agency Report, Tab 8.

By fax transmission of July 30, the agency notified Red John that its 
98 day performance period was considerably lower than the agency's 
estimate and stated:

     It is necessary for us to ensure that Red John's Stone can 
     complete the project work within 98 days.  As a means to verify 
     your contract time, please provide a copy of any documentation, 
     such as a draft [critical path method (CPM)] schedule, that you 
     used to determine your contract time for the work . . . .

Agency Report, Tab 13.

Red John responded by providing the agency with its CPM schedule.  
Consistent with the 98-day performance period, Red John had scheduled 
completion of all work by the third week of February 1999 (based on 
the required November 16 start date).  Agency Report, Tab 14.

The agency determined that the average temperatures for the repair 
areas were too low to permit placing hot asphalt concrete, painting 
pavement markings, and placing topsoil in accordance with the minimum 
requirements stated in FP-96, and that seeding for turf establishment 
would be performed prior to April 1, the specified start of the 
growing season.  Agency Report, Tab 7.  The agency thus determined 
that Red John's bid proposed work that was noncompliant with the 
solicitation requirements and that the work could not be performed 
within 98 calendar days.  Agency Report, Tab 7.  By letter of August 
27, the agency rejected Red John's bid as nonresponsive.  This protest 
followed.

Red John asserts that its bid did not take exception to the contract 
requirements and thus its bid was responsive.  It alleges that the 
agency's determination constitutes a negative responsibility 
determination which, since Red John is a small business, must be 
approved by the Small Business Administration.  See Mobility Sys. and 
Equip. Co., B-243332, Apr. 25, 1991, 91-1 CPD  para.  412 at 3-4.

Responsiveness deals with a bidder's unequivocal promise, as shown on 
the face of its bid, to provide the items or services called for by 
the material terms of the IFB.  On the other hand, the issue of a 
bidder's responsibility concerns whether the bidder can perform as 
promised in the bid.  Aviation Specialists, Inc.; Aviation Enters., 
Inc., B-218597, B-218597.2, Aug. 15, 1985, 85-2 CPD  para.  174 at 2.

Here, the contract completion date apparent from the face of Red 
John's bid[1] is February 22, 1999, i.e., 98 days from the stated 
start date of November 16, 1998.[2]  Regardless of the historical 
average temperatures for this performance period, Red John's bid did 
not take exception to performing the hot asphalt concrete paving, 
pavement marking, and placement of topsoil items in compliance with 
the minimum temperature and soil requirements stated in the IFB.  
Therefore, the issue raised by the average temperature data collected 
by the agency is not a question of bid responsiveness, but rather a 
question of whether Red John can perform these tasks as promised 
during the period of performance which it bid, which is a matter of 
responsibility not subject to review by our Office.  See 
Harley-Davidson, Inc., B-238436.3, June 4, 1990, 90-1 CPD  para.  528 at 3 
(whether low bidder can perform in compliance with cold weather 
starting requirements is a matter of responsibility; whether bidder 
actually complies with the requirements is a matter of contract 
administration); Government Contractors, Inc.--Recon., B-187671, Apr. 
29, 1977, 77-1 CPD  para.  295 at 2-4 (where bid did not take exception to 
staffing requirement, agency's knowledge that bidder in fact will not 
comply with the requirement is a matter of responsibility; whether 
bidder actually complies with the requirements is a matter of contract 
administration).

However, since Red John's bid promised to complete all of the contract 
requirements by February 22 (i.e., within 98 days of November 16), the 
bid, in effect, takes exception to the turf establishment requirement 
that seeding be done within the growing season of April 1 to September 
30.  Thus, as regards the turf establishment requirements, the issue 
concerns bid responsiveness.  See Pettinato Associated Contractors and 
Eng'rs, Inc., B-246106, Feb. 19, 1992, 92-1 CPD  para.  201 at 2-3.

As a general rule, a bid must be rejected if it modifies material 
requirements of the IFB or limits the bidder's liability to the 
government.  Federal Acquisition Regulation (FAR)  sec.  14.404-2(d) (June 
1997); Pettinato Associated Contractors and Eng'rs, Inc., supra, at 3.  
However, a bid defect or variation from the exact requirements should 
either be cured or waived as a minor informality if the defect or 
variation is immaterial, and if correction or waiver will not be 
prejudicial to other bidders.  FAR  sec.  14.405; TECOM, Inc., B-236929.2, 
May 11, 1990, 90-1 CPD  para.  463 at 3.  A defect or variation is 
immaterial if the effect on price, quantity, quality, or delivery is 
negligible when contrasted with the total cost or scope of the 
services being acquired.  FAR  sec.  14.405.  No precise standard can be 
employed in determining whether a defect has a negligible effect on 
price, quantity, quality, or delivery, but rather the particular facts 
of each case will determine whether a defect or variation is 
immaterial.  Leslie & Elliott Co., B-216676, Feb. 19, 1985, 85-1 CPD  para.  
212 at 2.  In determining whether a defect or variation is immaterial, 
our Office generally reviews the particular facts of the case with the 
following considerations: (1) whether the item is divisible from the 
solicitation requirements, (2) whether the cost of the item is de 
minimis as to the contract's total cost, and (3) whether waiver or 
correction clearly would not affect the competitive standing of 
bidders.[3]  Id. at 3; Lamb Eng'g & Constr. Co., B-261240, Aug. 25, 
1995, 95-2 CPD  para.  87 at 4-5.

In this case, the turf establishment item includes turf shoulders for 
the roadway.  Project Plan Sheets 3, 4, 13.  The Blue Ridge Parkway 
was designed and constructed with turf shoulders.  Agency Supplemental 
Report, November 24, 1998, at 4, Enclosure.  The agency's position is 
that turf shoulders are an aesthetic component which is an integral 
part of the overall visitor experience and paramount to the overall 
management of the park.  Agency Supplemental Report at 4-5, Enclosure.  
The turf shoulders are designed to support the weight of a vehicle, 
thus replacing paved shoulders and increasing the ability of the 
roadway to blend in with the adjacent environment.  Agency 
Supplemental Report, Enclosure.  Since turf serves as the shoulder 
material, improper establishment of the shoulders is also a safety 
concern for motorists in that vehicles leaving the paved surface 
and/or erosion may create ruts or drop-offs on the edges of the 
roadway that would be a hazard to moving vehicles which may stray off 
of the paved travel lane.  Agency Supplemental Report at 4, Enclosure.  
The turf shoulders also serve to control erosion by stabilizing the 
soil adjacent to the pavement and thus preventing damage to the 
structure of the roadway itself.  Agency Supplemental Report at 4; 
Agency Report, Legal Memorandum at 2.

Under the IFB, where permanent turf establishment is required, it must 
be in place to stabilize the disturbed area "no more than 14 days 
after" work has ceased.  Project Plan Sheet 14.  Although use of other 
stabilization methods are permitted for temporary erosion control, see 
id., until permanent turf is established on the shoulders, the 
shoulders cannot be used by vehicles in emergency circumstances, nor 
would the shoulders bear the weight of vehicles sufficiently to 
prevent unsafe driving conditions.  Agency Supplemental Report at 4.  
Thus, none of these other stabilization methods are suitable for 
serving as a safe roadway shoulder.  Agency Supplemental Report at 4.

Since Red John's bid calls for completion of the contract by February 
22, permanent turf establishment could not be applied within 14 days 
of completion of construction, even by another contractor, due to the 
growing season not starting for 38 days after February 22.[4]  
Although Red John's would be responsible for repairing damage to the 
shoulder caused by vehicular traffic or weather until contract 
completion, if the turf establishment item were severed from the 
contract and Red John's contract was completed with temporary erosion 
controls by February 22, Red John may not be responsible for repairs 
occurring after February 22 but prior to permanent turf establishment 
in April.  See FP-96  sec.  107.06; Agency Supplemental Report at 5.  Under 
such circumstances, the agency may have to contract for such repairs 
in addition to the permanent turf establishment requirement.  Also, 
since permanent turf establishment could not begin prior to April 1, 
vehicular traffic would be exposed to unsafe roadway conditions for an 
extended period.

Under these circumstances, we believe the turf establishment 
requirement is material to the overall project and, since roadway 
construction cannot be completed in February and turf shoulders 
established in April without creating a safety hazard and possibly 
increasing work requirements for the agency, the turf establishment 
item is essential and integral to, and indivisible from, the overall 
IFB requirements.  Thus, Red John's bid is nonresponsive for taking 
exception to this material term of the IFB.  See Lamb Eng'g & Constr. 
Co., supra, at 5 (bid is non-responsive where bid created doubt about 
bidder's intent to comply with a requirement that was essential and 
integral to, and indivisible from, the overall requirements); 
Pettinato Associated Contractors and Eng'rs, Inc., supra, at 2-3 (bid 
is nonresponsive where it modifies a requirement that cannot go 
unperformed and thus is indivisible from the overall requirements).

Red John also alleges that temporary turf establishment is permitted 
under the IFB as one of the means of temporary erosion control pending 
permanent turf establishment, and that temporary turf establishment 
could be performed prior to April 1.  Protester's Supplemental 
Comments, November 24, 1998, at 2; see Project Plan Sheet 14 "1. 
General Guidelines."  The protester states that permanent turf 
establishment would not be necessary if temporary turf establishment 
efforts result in growth of "permanent suitable vegetation."  
Protester's Supplemental Comments at 2; see IFB at J-14 (supplementing 
FP-96  sec.  625.01).

Even assuming the IFB permits planting of temporary turf seed prior to 
the local growing season (which is not at all apparent[5]), the IFB 
does not require a specific type of temporary erosion control, but 
rather identifies several acceptable stabilization methods.  See 
Project Plans at Sheet 14 "1. General Guidelines."  If the permanent 
turf establishment item were severed from the IFB, nothing in Red 
John's bid would bind Red John to use temporary turf establishment 
over the other appropriate and acceptable stabilization methods.  
Also, the protester's argument is based on the occurrence of an 
uncertain event--the growth of permanent suitable vegetation from 
temporary turf establishment efforts prior to the local growing 
season.[6]  Under this argument, the conditions that would make the 
permanent turf establishment immaterial and divisible from the IFB 
requirements cannot be known until performance of the contract, and 
thus cannot be considered in determining whether the bid is responsive 
at the time of bid opening.  See Mobility Sys. and Equip. Co., supra.

Red John also alleges that bids submitted by itself and other 
contractors have been determined responsive and the low bidder awarded 
contracts by this agency, even though the bid's performance period 
required turf establishment outside of the specified growing season, 
and thus Red John's bid should be found responsive here based on the 
agency's previous practices.  The protester's reliance on this 
agency's prior determinations has no bearing on the merits of the 
issue before us.  At stated above, bid responsiveness is determined 
solely from the bid documents themselves as of bid opening.  Id.  
Since each procurement is a separate transaction, and action taken on 
one procurement does not govern the conduct of similar procurements, 
the issue of bid responsiveness here must be determined from the 
current bid documents without reference to determinations under other 
procurements.  See ERC Gen. Contracting Servs., Inc., B-261404.2, Oct. 
11, 1995, 95-2 CPD  para.  170 at 4 n.1; Trio Graphics, Inc., B-253471, Aug. 
27, 1993, 93-2 CPD  para.  139 at 3-4.[7]

Finally, Red John asserts that this exception to the IFB requirements 
should be waived as a minor informality because the contract will be 
considered substantially performed even without turf establishment.  
In support, Red John cites decisions by boards of contract appeals 
finding that substantial performance of construction projects occurs 
prior to turf establishment.  However, the concept of substantial 
performance concerns a matter of contract administration which arises 
during contract performance, as indicated by the contract appeals 
cases cited by the 
protester.[8]  As such, the concept is not directly applicable to bid 
responsiveness, which is determined as of bid opening solely from the 
bid documents.  See Mobility Sys. and Equip. Co., supra, at 3.

The protest is denied.

Comptroller General
of the United States

1. The CPM schedule was not a bid document and thus cannot establish 
bid responsiveness.  See Mobility Sys. and Equip. Co., supra, at 3 
(responsiveness must be based solely on the bid documents themselves 
as they appear at the time of bid opening).

2. Since the IFB solicited bids for shorter performance periods than 
the stated maximum period of 180 days, and did not state a minimum 
mandatory period, Red John's bid offering a performance period of 98 
days was not per se nonresponsive.  See Cedar Valley Corp., B-256556, 
July 5, 1994, 94-2 CPD  para.  7 at 4-5 (where IFB solicited shortest 
practicable performance, bid offering short performance period, which 
was reasonably determined to be practicable, was acceptable); 
Cleveland Gen.--Recon., B-225804.3, June 1, 1987, 87-1 CPD  para.  551 at 1 
(where IFB authorized submission of accelerated delivery schedules, 
bid offering an accelerated delivery schedule is responsive).

3. The turf establishment line item is de minimis (less than $2,000 of 
the government estimated contract value of $345,000) and, due to the 
wide disparity in price between Red John's bid and the next lowest 
bid, waiver of the requirement would not affect the competitive 
standing of the bidders.

4. The protester alleges that, due to delay resulting from this 
protest process, contract completion would now occur within the 
growing season.  This cannot affect the responsiveness analysis since 
bid responsiveness must be based solely on bid documents themselves as 
they appear at the time of bid opening.  Mobility Sys. and Equip. Co., 
supra.

5. See Project Plan Sheet 14 ("Phase II . . . To control erosion 
during the time periods between seeding seasons, as shown in [FP-96  sec. ] 
625, apply temporary mulch in lieu of temporary turf establishment.")

6. The agency also states that temporary turf would probably consist 
of seed which would not contain the mix of seeds specified for 
suitable vegetation and/or would produce vegetation which would not 
survive more than one year.  Therefore, temporary turf establishment 
could not produce suitable vegetation to displace the permanent turf 
establishment requirement.  Agency Supplemental Report at 5.

7. To the extent the protester is challenging the dates of the growing 
season stated in the IFB, the protest is untimely.  Protests based on 
allegation of improprieties apparent from the face of a solicitation 
must be filed prior to bid opening.  4 C.F.R.  sec.  21.2(a)(1) (1998); 
Hein-Werner Corp., B-247459, June 2, 1992, 92-1 CPD  para.  484 at 3.

8. FP-96  sec.  101.04 at 12 defines substantial completion as:

            The point a which the project is complete such that it can 
            be safely and effectively used by the public without 
            further delays, disruption, or other impediments.  For 
            conventional bridge and highway work, the point at which 
            all . . . pavement structure, shoulder, . . . work is 
            complete.