TITLE:   American Analytical & Technical Services, Inc., B-282277.2, July 16, 1999
BNUMBER:  B-282277.2
DATE:  July 16, 1999
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American Analytical & Technical Services, Inc., B-282277.2, July 16, 1999

Decision

Matter of: American Analytical & Technical Services, Inc.

File: B-282277.2

Date: July 16, 1999

Robert J. Martinez, Esq., Williams & Jensen, for the protester.

Kenneth R. Pakula, Esq., Environmental Protection Agency, for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly did not reject bids as nonresponsive that failed to include
prices for certain contract line items (CLIN) where prices were submitted
for all of the sub-CLINs that comprised the CLIN, even though the
solicitation suggested that prices should be submitted for the CLINs as well
as the sub-CLINs.

DECISION

American Analytical & Technical Services, Inc. protests the agency's actions
under invitation for bids (IFB) No. PR-HQ-98-00031, issued by the
Environmental Protection Agency (EPA), for laboratory services. American
contends that certain bids failed to properly complete the IFB pricing
schedule and therefore should have been rejected as nonresponsive.

We deny the protest.

The IFB, issued July 22, 1998, was to procure multiple contractors under
indefinite-quantity contracts to provide laboratory services to analyze
samples from hazardous waste sites to determine the presence and
concentration of certain organic analytes in aqueous and non-aqueous
samples. IFB sect. B.1. As amended, the IFB allowed bidders to bid based on a
maximum monthly capacity of 100 samples per month, 300 samples per month, or
a combination of both. IFB amend. 3, sect. B-2. The IFB contemplated the award
of 19 1-year contracts with two yearly options, with no more than 3
contracts to be awarded to one bidder, and with 9 of the contracts based on
a 100-sample monthly capacity and 10 of the contracts based on a 300-sample
monthly capacity. IFB amend. 3, at 2; amend. 5, at 3, 7. Under the IFB, only
bidders who first met the specified qualifications and responsibility
requirements were eligible for awards. RFP amend. 3, sect. L.3, at 11.

To implement the award scheme, the IFB contained price schedules based on a
100-sample per month capacity and on a 300-sample per month capacity. For
the 100-sample capacity contracts, the successful contractors were
guaranteed a minimum of 75 samples per year with a maximum of 1,200 samples
per year, and for the 300-sample capacity contracts there was a minimum of
75 samples and a maximum of 3,600 samples per year. The bid schedules
included various contract line items (CLIN), each entitled "Full Sample
Analysis," under which there appeared sub-CLINs for providing "Full Sample
Analysis" within various turnaround times. The schedules required bidders to
enter a unit price and extended total for each sub-CLIN. For example, the
following bid schedule appeared in the amendment No. 5 to the IFB, at 4-5,
for the base period 100-sample per month requirement: [1]

 Base Period

 CLIN      Sample Type         Minimum    Maximum    Unit        Extended
 NO.                                                 Prices      Price

 0001      Full Sample         75         1,200      $           $
           Analysis

 0001A     Full Sample         0          720                    $
           Analysis

           21 Days

 0001B     Full Sample         0          252                    $
           Analysis

           14 Days

 0001C     Full Sample         0          108                    $
           Analysis

           07 Days

 0001D     Full Sample         0          108                    $
           Analysis

           72 Hours *

 0001E     Full Sample         0          12                     $
           Analysis

           48 Hours **

 Total Base Period $___________________

 * Semivolatile and Pesticides Only with Full Sample Analysis within 7
 days

 ** Volatile Organics Only with Full Sample Analysis within 7 days

The IFB advised bidders that the CLIN was designated by a number, e.g.,
0001, for which there was a minimum and maximum number of samples; that
sub-CLINs designated as 0001A, 0001B, etc. were sub-units of the CLINs; that
bidders should bid all or none for the maximum monthly capacity selected;
and that the maximum number of samples for each sub-CLIN was included on the
pricing schedule for evaluation purposes only. IFB amend. 5, at 3-4.

Twenty-three bids were received in response to the IFB. Fourteen of the bids
were eliminated from consideration for various reasons, and the remaining
nine bids, including American's, were determined to be responsive and to
satisfy the required qualifications. [2] Agency Report at 3-4. EPA noted
that several bidders, including American, had inserted unit and extended
prices in the space provided for the CLIN itself, when the agency had not
intended that bidders do so. Consequently, on April 2 and 6, EPA advised the
bidders whose bids were still being considered that prices were to be
submitted for the sub-CLINs only, and requested that the bidders verify
their bid prices, based on not submitting prices for the CLINs. Id. at 4
& exh. 42. All of these bidders verified their bids, including American.
This protest from American followed.

American protests that EPA is interpreting the solicitation unreasonably in
determining that the pricing schedules only required unit and extended
prices for the sub-CLINs. The protester contends that bids which did not
include a price in the boxes on the CLIN line must be rejected as
nonresponsive. American argues that the solicitation, including the revised
pricing schedule, can only be reasonably interpreted as requiring EPA to
consider bidders' prices for both the CLIN and sub-CLINs as part of the
evaluation. [3] Further, American argues that bidders, such as itself, who
inserted separate prices for the CLIN and sub-CLINs as required by the
specifications are prejudiced if the agency considers nonresponsive bids
that failed to do so. Protest at 11-16.

In response, EPA explains that it did not add the pricing grid in the
amended pricing schedules with the intent of obtaining separate prices for
the CLINs, particularly since there is no provision under the contract for
ordering a sample analysis with no corresponding turnaround time; instead,
according to the agency, the grid was included on the pricing schedules
simply to provide an easier format for bidders to use in submitting their
bids. Thus, EPA argues that interpreting the pricing schedules to require
separate pricing for the CLIN is not reasonable, given that the CLIN by
itself does not represent work to be ordered under the contract (because of
the absence of a turnaround time), and to include this price would only
result in an increase in bid prices, without obligating bidders to perform
any additional work. Agency Report at 11-12.

We recognize that the amended bid schedule, by creating a box with a dollar
sign in the box on the line identifying the overall CLIN, suggests that a
price should be included in that box for the CLIN overall (in addition to
the prices for the sub-CLINs). In our view, however, no possible prejudice
arose to the protester, and we therefore conclude that there is no basis to
challenge EPA's considering bids which failed to write a price in the box on
the CLIN line.

It is clear from the IFB (and confirmed by the agency's report and not
disputed by the protester) that the analyses ordered will fall under one of
the sub-CLINs; that is, every full sample analyses will be ordered with one
of the turnaround times specified in the sub-CLINs. The only reasonable
interpretation of the pricing grid is thus that the CLIN line is simply the
total of the individual CLINs, a point underscored by the fact that the
maximum quantities for the sub-CLINs add up to the maximum quantity listed
on the CLIN line. Moreover, bids that did not include a price in the box on
the CLIN line but did price the sub-CLINs (as all did) obligated the bidders
to perform the agency's requirements, and thus did not take material
exception to the solicitation requirements; the absence of a price on the
CLIN line therefore does not provide a basis to reject the bids as
nonresponsive. See Orange Shipbuilding Co., Inc.; Fredeman Shipyard, Inc.,
B-222384.3, B-222384.4, Sept. 29, 1986, 86-2 CPD para. 365 at 3-4.

In any event, all bidders, including the protester, confirmed that their
prices for the remaining line items would not change if the box on the CLIN
line were left blank. Given the bid verifications, we conclude that all
bidders competed equally on these requirements. The only prejudice that the
protester has alleged is, not that it would have priced its bid differently
if it had understood no prices were to be entered on the CLIN lines, but
that it would benefit if the bids that failed to list prices on those lines
were rejected as nonresponsive. In the context of this solicitation, we view
such a claim of prejudice as wholly without merit.

Under the circumstances, there is no basis to object to the agency's actions
under this IFB.

The protest is denied.

Comptroller General
of the United States

Notes

1. The bid schedules in the initial IFB did not divide the CLIN and
sub-CLINs into a grid for bidding, nor did the original schedule provide
spaces where separate prices could be inserted for the CLIN itself.

2. While the agency is continuing to perform pre-award surveys on the
remaining bidders, it is withholding making awards pending resolution of
this protest.

3. Although denied by the agency, American asserts that the contracting
officer verbally confirmed American's interpretation of the pricing
schedules prior to bid opening.