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.