BNUMBER:  B-281577 
DATE:  January 29, 1999
TITLE: Walashek Industrial & Marine, B-281577, January 29, 1999
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Matter of:Walashek Industrial & Marine 

File:     B-281577

Date:January 29, 1999

Ronald R. Leaders, Esq., Buckley & Leaders, for the protester.
Timothy A. Chenault, Esq., United States Coast Guard, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected as nonresponsive a bid that included 
statements by the bidder that the government would provide various 
utilities, which materially altered the rights and obligations of the 
bidder and contracting agency.

DECISION

Walashek Industrial & Marine protests the rejection of its bid 
submitted in response to invitation for bids (IFB) No. 
DTCG85-98-B-625M48, issued by the United States Coast Guard for boiler 
repairs to the icebreaker Polar Star.

We deny the protest.

The IFB (at 2) required bidders to submit a lump-sum price for 
supplying all labor, materials, and equipment (except certain 
specified government-furnished material) to perform the boiler repair 
work dockside on the Polar Star, and a composite labor hour rate for 
an estimated 656 hours of labor applicable to potential contract 
changes.  The IFB (at 32) stated that each bidder's total price would 
be calculated by multiplying the composite labor rate by the estimated 
hours, and adding that amount to the bid's lump-sum price for the 
repair work.

The agency received bids from Walashek and Fraser Inc. by the bid 
opening date of October 28, 1998.  Agency Report, Tab 14, Abstract of 
Offers.  Walashek submitted the apparent low bid of $153,712, and 
Fraser submitted the next low bid of $213,084.  Id.  Walashek's bid 
was accompanied by a short cover letter, stating among other things 
that:

     Contractor will need the following support services from the 
     ship:
        Electricity 110 and 440
        Compressed Air
        Fresh Water Source
        Steam Supply
        (Contractor would tie in to steam piping)

Agency Report, Tab 16.  The agency determined that these conditions 
rendered Walashek's bid nonresponsive and awarded the contract to 
Fraser.  Walashek filed a timely protest with the Coast Guard, which 
was denied on November 12.  Agency Report, Tab 5.  This protest 
followed.

According to Walashek, the Coast Guard "has developed a standard 
practice . . . of providing access to ship's utility services under 
ship repair contracts, if the ship's utility services are operable," 
and that because of this, its notation regarding the agency's 
provision of utilities for contract performance cannot be considered 
as a modification of the material requirements of the solicitation.  
Protest at 2.  Walashek adds that based upon its "observations" the 
repair work on the Polar Star is currently being performed by Fraser 
using the ship's utility services, and argues that this constitutes 
the "best evidence that the provision of utilities is immaterial."  
Protest at 6.

Generally, to be responsive, a bid must be an unequivocal offer to 
perform, without exception, the exact thing called for in a 
solicitation so that acceptance of the bid will bind the contractor to 
perform in accordance with all of the IFB's material terms and 
conditions.  New Dimension Masonry, Inc., B-258876, Feb. 21, 1995, 
95-1 CPD  para.  102 at 2.  If, in its bid, a bidder attempts to impose 
conditions that would modify the material requirements of the IFB, 
limit the bidder's liability to the government, or limit the rights of 
the government under any contract clause, then the bid must be 
rejected.  Federal Acquisition Regulation  sec.  14.404-2(d); NR Vessel 
Corp., B-250925, Feb. 11, 1993, 93-1 CPD  para.  128 at 2-3.  

The Coast Guard states that, while its practice is "to reasonably 
cooperate with its contractors and this may include allowing ship 
repair contractors access to operational shipboard utilities," it does 
not guarantee contractor access to any shipboard utilities.  Agency 
Report, Tab 2, Statement of Lieutenant Commander Brad J. Suchanek.  
The agency explains that it could not guarantee in the IFB the 
availability or adequacy of shipboard utilities to contractors because 
such utilities are "finite" and must first be available to meet the 
needs of the ship and its crew, and in any event, the availability of 
such utilities was unknown when the IFB was drafted.  Id.  The agency 
adds that it does not guarantee the availability or adequacy of 
shipboard utilities to ship repair contractors because of the risk of 
delay in contract performance and potential liability of the agency, 
should the shipboard utilities prove to be unavailable to the 
contractor or otherwise inadequate.  Id.  The agency finally points 
out that, contrary to Walashek's claim, the Polar Star provided some 
utilities to Fraser, while Fraser provided others; specifically, 
Fraser brought in its own boiler for steam and provided electricity 
for its welders, while the ship provided compressed air, electricity 
for other tools, and several thousand gallons of water for the testing 
of the boiler.  Agency Report, Tab 1, Contracting Officer's Statement 
at 2.

The conditions set forth in Walashek's cover letter concerning the 
provision of utilities altered the rights of the agency so as to 
require that the agency guarantee the availability of utilities.  We 
have held that where a bidder conditions its bid upon the use of 
government facilities not specifically made available in the IFB, the 
bidder has availed itself of benefits not extended to other bidders by 
the advertised specifications and rendered its bid nonresponsive.  New 
Dimension Masonry, Inc., supra, at 4; Cloyd Dake Gull and Assocs., 
Inc., B-192095, Dec. 4, 1978, 78-2 CPD  para.  382 at 5.  Walashek's 
attachment of conditions regarding the availability of utilities is 
material because of their effect on the rights and liabilities of the 
contractor and agency, and because the conditions would extend 
benefits to Walashek that were not available to the other bidder.  
Walashek's bid was thus properly rejected by the agency as 
nonresponsive.          

The protest is denied.

Comptroller General
of the United States