TITLE:  John C. Grimberg Company, B-284013, February 2, 2000
BNUMBER:  B-284013
DATE:  February 2, 2000
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John C. Grimberg Company, B-284013, February 2, 2000

Decision

Matter of: John C. Grimberg Company

File: B-284013

Date: February 2, 2000

Shelly L. Ewald, Esq., Watt, Tieder, Hoffar & Fitzgerald, for the protester.

Douglas L. Patin, Esq., Spriggs & Hollingsworth, for Charles H. Tompkins
Company, an intervenor.

Frank J. Sando, Esq., Department of Justice, 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

The determination of the low bid submitted in response to an invitation for
bids for a construction base item with various additive items must be based
on the items encompassing the actual work to be awarded and may not consider
additive items that are not awarded.

DECISION

John C. Grimberg Company protests the award of a contract to Charles H.
Tompkins Company under invitation for bids (IFB) No. 7213R, issued by the
Federal Bureau of Investigation (FBI), for the construction/renovation of
firearms ranges at the FBI Academy in Quantico, Virginia. Grimberg contends
that it should have received the award because it submitted a lower price
than did Tompkins for the actual work awarded under the IFB.

We sustain the protest.

Under attachment A of the IFB, bidders were required to enter separate
prices for the "Base Bid," three separate "Add Alternates," and a total bid
amount determined by adding the prices for the Base Bid and Add Alternates.
The Base Bid was for the construction of three 25-meter ranges and a
ballistic screen wall, as well as soil remediation, general site work, and
demolition of existing facilities. Add Alternate No. 1 was for the
construction of a 50-meter range and associated site work. Add Alternate No.
2 was for the construction of a stress obstacle range and associated site
work. Add Alternate No. 3 was for the construction of a combat range and
associated site work. IFB sect. 00200, para. 1.26. Attachment A also stated:

The Government reserves the right to select all, none or any combination
thereof of the Add Alternates listed above. A single award will be made to
the lowest priced responsive and responsible bidder inclusive of the Base
Bid and sum total of the Add Alternates.

The IFB also stated:

A single award will be made to the lowest priced responsive and responsible
bidder. Discounts for Early Payment, if offered, will not be considered in
evaluation for award. Award shall be made on the total bid amount.

IFB sect. 00200, para. 1.23(1). Along with this statement, this section, consistent
with attachment A, contained blank spaces for bidders to insert separate
pricing for the base bid, three alternates, and total bid amount.

At bid opening on June 24, 1999, the FBI received seven bids in response to
the IFB, including bids from Grimberg and Tompkins. The FBI determined that
Tompkins submitted the lowest-priced bid based upon its total bid amount of
$35,969,000, which included a Base Bid price of $19,969,000, an Add
Alternate No. 1 price of $6,000,000, an Add Alternate No. 2 price of
$3,000,000, and an Add Alternate No. 3 price of $7,000,000. Grimberg
submitted the next low priced total bid at $37,230,000, which included
prices of $18,950,000 for the Base Bid, $7,150,000 for Add Alternate No. 1,
$3,900,000 for Add Alternate No. 2, and $7,230,000 for Add Alternate No. 3.
Due to funding restrictions, the FBI determined that award would be made to
Tompkins for the Base Bid and Add Alternate No. 2 only. Agency Report, Tab
14, Memorandum (Sept. 21, 1999). The FBI awarded the contract to Tompkins on
October 21 for the Base Bid and Add Alternate No. 2 at a price of
$23,029,000. [1]

Grimberg protests that it is entitled to the award since it submitted the
lowest price for these two items (that is, $22,850,000). The FBI defends the
award to Tompkins on the basis that the language in attachment A and section
00200, paragraph 1.23 of the IFB (quoted above) requires that the low bid be
determined by evaluating the bid prices for the total bid amount, reflected
by the Base Bid plus all three alternates, irrespective of the items
actually awarded. Contracting Officer's Statement at 4-5; Agency Memorandum
of Law at 2-4.

An award under a procurement conducted under sealed bid procedures must be
made consistent with the requirements of 41 U.S.C. sect. 253b(c) (1994), which
in pertinent part states:

[The agency] shall award a contract with reasonable promptness to the
responsible source whose bid conforms to the solicitation and is most
advantageous to the United States, considering only price and the other
price-related factors included in the solicitation.

This requirement was also stated at section 00200, paragraph 1.11(1) of the
IFB. This language requires that award under an IFB be made at the most
favorable terms to the government, which means that a determination of the
low bid must be measured by the actual work to be contracted for; otherwise
award cannot be said to have been made to the lowest bidder. [2] See Castle
Constr. Co., Inc., B-197466, July 7, 1980, 80-2 CPD para. 14 at 3; Sterling
Eng'g and Constr. Co., Inc., B-184577, Nov. 11, 1975, 75-2 CPD para. 293 at 2;
Square Deal Trucking Co., Inc., B-183695, Oct. 2, 1975, 75-2 CPD para. 206 at 2;
50 Comp. Gen. 583, 585 (1971).

The IFB should be interpreted consistent with this statutory requirement.
Attachment A and paragraph 1.11(1) of the IFB specifically provide for award
under the IFB to be made to the low responsive/responsible bidder and on the
basis of awarding any item or combination of the items in attachment A.
Paragraph 1.23 states that "[a]ward shall be made in the total bid amount."
Reading these provisions together and consistent with 41 U.S.C. sect. 253b(c),
the low bid must be based on the items that will actually be awarded. Thus,
the total of the base bid plus all alternates has no relevance in
determining the low bid where not all items are to be awarded. [3]

In any event, even assuming that the IFB can be read as posited by the
agency, such an award would be inconsistent with 41 U.S.C. sect. 253b(c) and the
IFB would be defective. Since there is no suggestion that the competition
has been adversely affected by the award provisions in the IFB, such that
cancellation of the IFB and resolicitation would be required, award should
be made on the basis of the lowest

properly evaluated bid, that is, Grimberg's bid. Square Deal Trucking Co.,
Inc., supra, at 3; 50 Comp. Gen. at 585-86; see Federal Acquisition
Regulation sect. 14.404-1(a)(1).

Consequently, the agency's award to Tompkins for the Base Bid and Add
Alternate No. 2 was improper since Grimberg's bid for these items was priced
lower.

We recommend that the FBI terminate the contract awarded to Tompkins, and
make award to Grimberg, if otherwise appropriate. We also recommend that
Grimberg be reimbursed for the cost of filing and pursuing its protest,
including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1). The protester
should submit its certified claim for such costs, detailing the time
expended and the costs incurred, directly to the contracting agency within
60 days of receiving the decision.

The protest is sustained.

Comptroller General
of the United States

Notes

1. The award amount was for $60,000 more than Tompkins' Base Bid and Add
Alternate No. 2 prices to account for a mistake in Tompkins' bid that the
agency found should be corrected. Agency Report, Tab 14, Memorandum (Sept.
21, 1999).

2. To support its interpretation of the IFB, the agency cites Charles J.
Merlo, Inc., B-277384, July 31, 1997, 97-2 CPD para. 39, where the low bid was
determined considering option prices, even though the options would not be
exercised at the time of award. In that case, since the agency had a
reasonable certainty that the options would ultimately be exercised under
the contract, the determination of the low bid properly included the option
prices. Here, there is no provision under the IFB for the work covered by
the Add Alternates that were not awarded to be later added under the
contract.

3. The FBI argues that the protest actually concerns an apparent
solicitation defect that was required to be protested prior to bid opening
under our Bid Protest Regulations, 4. C.F.R. sect. 21.2(a)(1) (1999). Where a
protester asserts that it reasonably interpreted an IFB consistent with 41
U.S.C. sect. 253b(c) as requiring award to the low bidder for the actual work to
be awarded and was not reasonably aware that the IFB would be interpreted
otherwise, the protester is contending that the IFB award provisions
mandates that the award be based on the actual work to be ordered and is not
alleging an apparent solicitation impropriety. See Northeast Constr. Co.,
B-205246, Apr. 1, 1982, 82-1 CPD para. 293 at 4.