TITLE: Great Lakes Dredge & Dock Company
BNUMBER: B-290158
DATE: June 17, 2002
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Great Lakes Dredge & Dock Company, B-290158, June 17, 2002
Decision
Matter of: Great Lakes Dredge & Dock Company
File: B-290158
Date: June 17, 2002
Daniel C. Sauls, Esq., Thomas P. Barletta, Esq., and Paul R. Hurst, Esq.,
Steptoe & Johnson, for the protester.
Michael H. Payne, Esq., Starfield & Payne, for Weeks Marine, Inc., an
intervenor.
Peter M. Kilcullen, Esq., Kilcullen Law, for Bean Stuyvesant, LLC, an
intervenor.
Madeline Shay, Esq., U.S. Army Corps of Engineers, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency was not required to reject as nonresponsive bid for dredging and
disposal of dredged material that failed to include all permits for proposed
disposal site, because submission of permits pertains to bidder
responsibility.
DECISION
Great Lakes Dredge & Dock Company protests the award of a contract to any
bidder other than itself under invitation for bids (IFB) No.
DACW51-01-B-0024, issued by the U.S. Army Corps of Engineers, New York
District for a navigation improvement project for New York Harbor, Kill Van
Kull and Newark Bay Channels. Great Lakes contends that the agency should
have rejected as nonresponsive the two bids that were lower in price than
its own.
We deny the protest.
The IFB, which was issued on September 4, 2001 and amended ten times prior
to bid opening, required the dredging and disposal of rock and non-rock
material from the channels. The solicitation provided for placement of the
non-rock material removed at the Historic Area Remediation Site (HARS), IFB
sect. 02900, para. 7.2.1, but also identified some of the material to be dredged as
"[n]on-rock material unsuitable for placement at the HARS [disposal
facility]." IFB, sect. 02900, para. 6. The IFB gave bidders the option of using
the OENJ Cherokee Bayonne Landfill Remediation Site or of proposing their
own facility for disposal of this material. IFB Amend. No. 0010, sect. 00010,
Item No. 0001AC. Bidders proposing their own facilities were to enter the
name, address, and permit number of their site(s) on the bid schedule, and
Note 8 to the schedule instructed bidders as follows:
Should bidders choose to supply their own site in 0001AC, bidders shall
submit the documents specified [in] Section 00800: Special Contract
Requirements within 70 calendar days from the date the bids were opened and
determined as an apparent low bidder or the Contractor's bid will be
considered non-responsible and rejected. In addition the bidders should
submit with the bid, permits demonstrating that the chosen disposal site(s)
is legal to operate on or before the date of the bid opening must accompany
the bid package, or the bid will be considered non-responsible and rejected.
IFB amend. No. 0010, sect. 00010, Note 8.[1]
Four bids were opened on the March 15, 2002 opening date. The three lowest
bids were as follows:
Bidder Total Bid
Weeks Marine, Inc. $44,199,621
Bean Stuyvesant LLC $47,403,111
Great Lakes $47,928,201
On May 10, the contracting officer determined that Weeks was non-responsible
and rejected its bid, leaving Bean in line for award as the apparent low
bidder. The contracting officer determined that Bean's bid was responsive
and is currently in the process of examining Bean's responsibility.
Great Lakes proposed to use the Cherokee site for disposal of the non-rock
material not suitable for placement at the HARS, while Bean proposed an
alternate site, the City of Linden, New Jersey landfill. Specifically, in
materials accompanying its bid, Bean explained that it intended to process
the raw dredged material at the CTI Claremont Dredged Material Processing
Facility, Jersey City, New Jersey, which already possessed all necessary
permits and approvals (copies of which Bean furnished with its bid package),
and then dispose of it in the City of Linden landfill. Bean listed the
permits that the City of Linden landfill already possessed and noted that
disposal of the dredged material in the landfill would require approval of a
Revised Landfill Closure/Post-Closure Plan and issuance of a Final Landfill
Closure and Disruption Permit and an Acceptable Use Determination
permit.[2] Bean enclosed with its bid a copy of the Revised Landfill
Closure/Post-Closure Plan submitted to the NJDEP on January 17, 2002 and a
copy of its Final Closure Permit application, but did not furnish copies of
any permits for the landfill.
The protester argues that it was a material requirement of the IFB that
bidders commit to disposing of the non-rock materials not suitable for
placement at HARS in a facility that was legal to operate and had all
permits necessary to receive the material from this project as of the bid
opening date. Great Lakes contends that Bean failed to comply with this
requirement in that, by its own admission, it did not have all of the
requisite permits at the time of bid opening, and in that its bid
documentation affirmatively establishes that the City of Linden landfill was
not "legally able to operate" at the time of bid opening. In support of its
argument, the protester cites two decisions that, in its view, stand for the
proposition that a bid's failure to propose an approved and permitted
facility for contaminated material as required in a solicitation renders the
bid nonresponsive, Aqua-Tech, Inc. v. United States Army Corps of Engineers,
564 F. Supp. 773 (D.D.C. 1983), and Waste Conversion, Inc., B-224425.2, Nov.
7, 1986, 86-2 CPD para. 534.
A requirement for the submission of the permits necessary for performance at
a particular site relates to how the contract requirements will be met,
rather than to the performance requirements themselves; such a requirement
thus pertains to bidder responsibility. VA Venture; St. Anthony Med. Ctr,
Inc., B-222622, B-222622.2, Sept. 12, 1986, 86-2 CPD para. 289 at 5. A bidder
need not demonstrate compliance with solicitation requirements pertaining to
its responsibility, that is, its ability to perform as promised, in order to
have its bid determined responsive. Moreover, the fact that the IFB called
for submission of a permit showing that the proposed disposal site was
"legal to operate" as of the bid opening date does not convert the permit
requirement into a matter of bid responsiveness. The terms of a
solicitation cannot convert a matter of responsibility into one of
responsiveness. Integrated Prot. Sys., Inc., B-254457.2, B-254457.3, Jan.
19, 1994, 94-1 CPD para. 24 at 3; Norfolk Dredging Co., B-229572.2, Jan. 22,
1988, 88-1 CPD para. 62 at 3. Accordingly, we see no merit in the protester's
argument that Bean's bid should have been rejected as nonresponsive.
We think that the cases cited by the protester in support of its argument
that the Corps should have rejected Bean's bid as nonresponsive are
distinguishable. In Aqua-Tech, which concerned an Army Corps of Engineers
IFB for removal of toxic waste from a site in Ohio, the IFB required
transportation of the waste materials directly to an Environmental
Protection Agency (EPA) approved disposal site, and disposal of the waste
material at that site. Bidders were required to designate their proposed
disposal sites in their bids. Aqua-Tech failed to propose an EPA-approved
site in its bid; accordingly, the bid was rejected as nonresponsive. In the
case at hand, in contrast, the IFB did not require that the dredged material
be disposed of in an approved disposal site; hence, the identity of the
disposal site did not bear on the responsiveness of the bid. Moreover, the
issue that the court considered in Aqua-Tech was whether the Corps had
correctly rejected Aqua-Tech's bid, and not whether the grounds for
rejection of the bid pertained to responsiveness as opposed to
responsibility.
The other decision cited by the protester, Waste Conversion, concerned a
Corps of Engineers IFB (for excavation and removal of contaminated soil and
hazardous wastes from an inactive hazardous waste disposal site located in
New Jersey) that required bidders to furnish the name and address of an
approved off-site disposal facility that they intended to use for disposal
of contaminated materials. We did not address the issue of whether the
Corps had correctly rejected the protester's bid as nonresponsive for
failing to furnish the name of an approved site; the issue that we
considered was whether the bidder should be permitted to substitute an
alternate disposal site for the one that it had designated in the bid. We
concluded that Waste Conversion should not be permitted to substitute one
site for the other after bid opening "irrespective of how the requirement at
issue is classified, that is, whether it is considered a matter of
responsiveness or one of responsibility." Waste Conversion, Inc., supra, at
3. In other words, we did not reach a conclusion as to whether the issue
was one of responsiveness or responsibility.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Paragraph 1.45 of Section 00800 provided detailed guidance regarding the
documentation that bidders were required to submit with their bid packages
and that the apparent low bidder was required to furnish within 70 days
after bid opening. The opening section of the paragraph stated as follows:
If the bidder selects to bid an alternate disposal site(s) for the
processing and disposal of Non-rock material unsuitable for placement at the
HARS other than the Government designated upland site, the Apparent low
bidder must submit with his bid the site(s)'s permit, and must demonstrate
to the Government within 70 calendars [sic] from the bid opening that the
alternate disposal site(s) is operational, capable of processing and
disposing of the Non-rock material unsuitable for placement at the HARS on
that date and is in compliance with the New Jersey Department of
Environmental Protection and/or with the New York State Department of State
Coastal Zone Management Program Policies or other host state compliance as
appropriate for disposal of dredged material.
Further along, the paragraph noted that all necessary permits required for
the dredged material placement were to be provided to the government with
the bid package, including "placement site permits as applicable and others
as related to transportation, processing and placement of the dredged
material, or any other aspects of the Apparent low bidder's proposed
disposition of the dredged material including any and all permits,
authorizations, contracts, agreements, licenses, [and] rights of entry"
relating to legal or regulatory requirements concerning interim storage,
dewatering and other treatment or processing, zoning compliance, waterfront
development, water quality certification, coastal zone management, tideland
management, and wetland management. The paragraph went on to note that
documentation of compliance with any other legal or regulatory requirement
was required to be provided to the government within 70 calendar days after
bid opening.
IFB amend. No. 0010, sect. 00800, para.1.45.
[2] The introductory section of the revised closure plan explained that the
Linden landfill had been closed for acceptance of waste on December 31,
1999, and that in July 2000, the City of Linden had requested the use of
stabilized dredge material as the final capping system of the landfill. The
document went on to explain that the use of dredge material, which had not
been included in the previously approved landfill cap, required the approval
of the New Jersey Department of Environmental Protection (NJDEP), and hence,
the submission of a new Revised Closure Plan application.