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