TITLE:  FCS Construction Services, Inc., B-283726.2, January 3, 2000
BNUMBER:  B-283726.2
DATE:  January 3, 2000
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FCS Construction Services, Inc., B-283726.2, January 3, 2000

Decision

Matter of: FCS Construction Services, Inc.

File: B-283726.2

Date: January 3, 2000

Fredric W. Stearns, Esq., Vaughn, Wright & Stearns, for the protester.

Maj. James A. Lewis and Col. Nicholas P. Retson, Department of the Army, for
the agency.

Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency properly converted the procurement from sealed bid to negotiated
procedures, after bid opening, where the only acceptable bid received was at
an unreasonable price.

2. Agency's corrective action of canceling converted negotiated procurement
was permissible where agency determined that a potentially ambiguous
solicitation requirement may have resulted in unduly restricted competition.

DECISION

FCS Construction Services, Inc. protests the cancellation of solicitation
No. DAKF11-99-B-1001, issued by the Department of the Army for the
renovation and repair of certain buildings at Fort McPherson, Atlanta,
Georgia.

We deny the protest.

The solicitation, originally issued as an invitation for bids (IFB) on
August 5, 1999, contained a schedule calling for prices for demolition work
at two barracks buildings including the removal and disposition of any
hazardous materials encountered, and for the installation of new partitions,
ceilings, plumbing, electrical wiring and heating ventilating and air
conditioning equipment. The schedule also required the attachment of
certificates and the entry of license numbers for Georgia asbestos and LBP
(lead-based paint) licenses; it stated that failure to submit these license
numbers would render the bid ineligible for award. IFB sect.B. Section H of the
solicitation contained a provision entitled "SPECIAL REQUIREMENT FOR PRIME
CONTRACTORS ON FORT MCPHERSON AND FORT GILLEM," which provided at paragraph
A that "[a]ll prime contractors involved in alteration, renovation and/or
repair on Fort McPherson and Fort Gillem are required to have Georgia State
licenses for conducting work involving Asbestos and Lead-[based] paint." The
provision further provided at paragraph D that "[f]ailure to include the
required license and training certifications with the initial proposal
submission will render offeror's bid/proposal as ineligible for award and
further consideration will not be given." Internal agency correspondence
shows that, because of asbestos and LBP related performance problems that
had necessitated delays and stoppages of a renovation contract for building
56, the agency intended to have the solicitation at issue, as well as any
other solicitation for similar work at Fort McPherson and Gillem, require
Georgia asbestos and LBP licensing and certification for all prime
contractors in order to be eligible to compete. Agency Report, Tab D.

Five firms submitted bids in response to the solicitation by the September
15 bid opening time, as follows:

Government Estimate $2,600,180

FCS $2,683,349

Reams Enterprises $2,687,201

Total Systems $3,365,808

Georgia/Atlantic $3,385,702

CompuCraft, Inc. $3,606,000

Agency Report, Tab I.

FCS, the apparent low bidder, submitted with its bid Georgia licenses for
conducting work involving asbestos and LBP for Morley Environmental, Inc., a
subcontractor. Agency Report, Tab R. Reams Enterprises and CompuCraft, Inc.
were the only bidders that submitted the required licenses in their own
names as prime contractors. Id. The bids from the three firms (including
FCS) that did not submit licenses in their own names were rejected. Legal
Memorandum at 2. On September 17, award was made to Reams as the lowest
responsive, responsible bidder. Contracting Officer's Statement at 2.
CompuCraft then filed an agency-level protest alleging that Reams did not
hold the Georgia certificates in its own name. Id. The agency concluded that
the awardee's asbestos certification was defective and the award was
terminated for convenience. CompuCraft, the remaining eligible bidder, was
considered for award, but the contracting officer concluded that its bid was
too high to permit a determination that the price was reasonable.

Pursuant to Federal Acquisition Regulation (FAR) sect. 14.404-1 (e) and (f), the
contracting officer determined that the use of negotiation was in the
government's interest, and elected to convert the solicitation to a request
for proposals, and to negotiate and make an award without issuing a new
solicitation. Each bidder under the sealed bid acquisition was given notice
that negotiations would be conducted and was given an opportunity to
participate in the negotiations. Amendment No. 0005 was issued converting
the sealed bid procurement to a negotiated procurement and also changing the
language in the specifications to permit offerors to provide LBP and
asbestos certifications in the names of subcontractors as well as in the
names of prime contractors.

Thereupon, on September 24, FCS filed a protest with our Office asserting
that the original IFB specifications permitted Georgia LBP and asbestos
certifications in the name of either the prime contractor or a
subcontractor. FCS maintained that it was entitled to award under the IFB as
the low responsive, responsible bidder, and objected to the conversion from
a sealed bid procurement to a negotiated procurement.

As a result of FCS's protest, the agency concluded that the original
solicitation requirement with respect to LBP and asbestos had been
ambiguous. The agency states that it had intended to require prime
contractor certifications because the agency's experience had been that
because many prime contractors performing renovation work at Fort McPherson
had not possessed the expertise required for recognizing hazardous
situations, workers had been unnecessarily exposed to hazardous materials.
Determination to Cancel Solicitation at 2. The agency further states that
the prime contractor certification requirement was intended to address this
important safety concern. On October 1, in response to the FCS protest, the
contracting officer decided to issue amendment No. 0006 canceling the
solicitation because the original specifications were subject to differing
interpretations and the specifications may have unduly restricted
competition as evidenced by the fact that only two bids included prime
contractor certifications. [1] By letter dated October 4, the agency advised
our Office that it had taken corrective action by canceling the
solicitation, whereupon our Office dismissed the protest as academic.

FCS now protests the cancellation on the basis that the agency did not have
a compelling reason to cancel the solicitation, and seeks award of a
contract under the initial sealed bid procurement.

FCS supports the agency's decision to terminate Ream's contract but contends
that the conversion of the solicitation from sealed bid to negotiated, and
the subsequent cancellation were improper because award should have been
made to FCS under the IFB. The agency asserts that award to the protester
was not an option because the protester's bid, like Reams's bid, was
unacceptable because it did not provide the appropriate LBP and asbestos
certifications as required by the IFB. [2]

Termination of the contract and conversion of the procurement from sealed
bid to negotiated was unobjectionable here since, subsequent to award, the
agency discovered that the awardee's certification in its own name was
defective, and the only other bidder with the appropriate certifications was
determined to have bid an unreasonable price. An IFB may be cancelled after
bid opening and the acquisition completed through negotiation where the
cancellation is based on a determination or that all otherwise acceptable
bids are unreasonably priced. FAR sect. 14.404-1(c) and (e).

The protester takes the position that it should have been awarded the
contract under the original IFB. However, the initial IFB, as quoted above,
required that prime contractors have specific Georgia licenses for
conducting work involving asbestos and LBP. The protester did not meet this
requirement and therefore was ineligible for award under the original IFB.
[3]

Regarding the propriety of the agency's subsequent cancellation of the
negotiated procurement, for procurements conducted under negotiated
procedures, the agency maintains that canceling the solicitation is proper
because the requirement for prime contractor certification may have been
restrictive of competition. A procuring agency may cancel a negotiated
procurement based on the potential for increased competition. Adrian Supply
Co., B-237531.3, Aug. 17, 1990, 90-2 CPD para. 138 at 2. Where, as here, the
original solicitation is ambiguous, with the result that offerors responded
to it based on different reasonable assumptions as to what was required, the
competition has been conducted on an unequal basis and the government has
been deprived of the full benefits of competition. Under these
circumstances, it is

appropriate to resolict the requirement. [4] Allied Signal, Inc.; Electronic
Sys., B-275032, B-275032.2, Jan. 17, 1997, 97-1 CPD para. 136 at 11.

The protest is denied.

Comptroller General

of the United States

Notes

1. In addition, the agency reports that its records reflect an inquiry from
one potential bidder that did not bid on the requirement because the company
did not have asbestos and LBP licenses in its own name. Agency Report, Tab
D, at 4.

2. A provision, such as the one here, that requires the awardee to possess
specific licenses at the time of award is a definitive responsibility
criterion, compliance with which is a necessary prerequisite to contract
award. Aero Sys., Inc., B-215892, Oct. 1, 1984, 84-2 CPD para.374 at 2.

3. The protester argues that the amendment language allowing license
certification in the name of either the prime contractor or a subcontractor
somehow constitutes an admission by the agency that the agency's
interpretation of the IFB licensing requirement was unreasonable, and that
the original IFB unambiguously permitted either certification. We disagree.
We view the original IFB as requiring certification in the name of the
prime. At most, the original provision was ambiguous, that is, subject to
two possible interpretations; nothing in the fact that the agency amended
the solicitation suggests that the IFB initially allowed licenses issued in
the name of a subcontractor.

4. FCS also seeks bid protest costs because of the "corrective action" taken
by the agency. Our Bid Protest Regulations, 4 C.F.R. sect. 21.8(e) (1999),
provide that where an agency takes corrective action in response to a
protest, we may recommend that the agency pay protest costs, including
attorneys' fees; however, we will make such a recommendation only where the
agency unduly delayed taking corrective action in the face of a clearly
meritorious protest. CSL Birmingham Assocs.; IRS
Partners--Birmingham--Entitlement to Costs, B-251931.4, B-251931.5, Aug. 29,
1994, 94-2 CPD para. 82 at 3. Here, the agency took corrective action one month
before the date on which it was required to file the agency report in our
Office. Where, as here, corrective action is taken prior to the protest
report due date, we regard such action as reasonably prompt and decline to
consider the protester's request that we recommend reimbursement of protest
costs. CDIC, Inc.--Entitlement to Costs, B-277526.2, Aug. 18, 1997, 97-2 CPD
para. 52 at 2.