TITLE: Brickwood Contractors, Inc.
BNUMBER: B-290444
DATE: July 3, 2002
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Brickwood Contractors, Inc., B-290444, July 3, 2002
Decision
Matter of: Brickwood Contractors, Inc.
File: B-290444
Date: July 3, 2002
James J. Tansey, Esq., for the protester.
Carl A. Haberbusch, Esq., and Jane Goetz, Esq., Goetz Fitzpatrick Most &
Bruckman, for Spearin, Preston & Burroughs, the intervenor.
J. Stephen Brophy, Esq., and Elaine A. Eder, 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
1. Contracting officer acted properly where the record reflects that he
diligently reviewed the protester's responsibility, found the protester
nonresponsible, and then promptly referred the matter to the Small Business
Administration (SBA) under certificate of competency (COC) procedures, and
because of the length of time required to complete these reviews, the
bidders were requested to extend their bids; there was no regulation or
other legal requirement that provides that a contracting officer's referral
of a small business bidder to the SBA for a COC must take place at such a
time in the process so as to permit the SBA to make its COC determination
prior to the expiration of the bidder's initial bid acceptance period.
2. Bidder that allegedly submitted its bid extension by facsimile
transmission assumed the risk of nonreceipt by the agency, and the bidder's
evidence of its facsimile transmission does not establish receipt where, as
here, the agency denies receipt and there is no other evidence of receipt.
DECISION
Brickwood Contractors, Inc. protests the award of a contract to any other
bidder under invitation for bids (IFB) No. DTCGG1-02-B-38T001, issued by the
Coast Guard for repairs to the Ambrose Light Tower.
We deny the protest.
The IFB, issued January 3, 2002, provides for the award of a fixed-price
contract to repair the Ambrose Light Tower.[1] The agency received six bids
by the bid opening date of February 26, 2002, with Brickwood submitting the
apparent low bid of $1,416,000. Protest, exh. 2, Abstract of Bids.
Because the next low bid and the agency's estimate for the contract were
much higher than Brickwood's bid (they were $1,987,000 and $2,350,000,
respectively),
the contracting officer, by letter dated February 27, requested that
Brickwood confirm its bid. The contracting officer informed Brickwood that
"[n]ormally on marine construction projects the bidding community is rather
limited" and that he had "never heard of [Brickwood]." The contracting
officer added that based upon his preliminary investigation, which included
obtaining a Dun & Bradstreet report, it appeared that Brickwood was a
painting contractor and that none of the information available referenced
"any marine construction experience."[2] The contracting officer also noted
that it appeared that the bid package had been mailed to Brickwood on
February 19 (1 week prior to bid opening), and that Brickwood had not
attended the site visit. The contracting officer concluded that it appeared
that Brickwood may have made a mistake in its bid or misunderstood the scope
of work, and further informed Brickwood that should it confirm its bid, the
agency would perform "a more extensive responsibility check" to ensure
Brickwood's "ability to perform" the contract. Protest, exh. 3, Contracting
Officer's Letter to Brickwood (Feb. 27, 2002).
By letter dated March 7, Brickwood confirmed its bid price and provided
"three pages of references." The contracting officer reviewed the
information submitted and found, however, that most of Brickwood's
references were for "painting projects and none were offshore marine
projects." Given the contracting officer's continued concerns regarding
Brickwood's responsibility, the contracting officer requested, by letter
dated March 11, that Brickwood provide "additional information including
proposed subcontractors and sources of marine equipment." Agency Report,
exh. 6, Contracting Officer's Determination and Findings Regarding
Brickwood's Responsibility, at 2-3.
Brickwood provided the requested information on March 21, and the
contracting officer contacted Brickwood's proposed subcontractors. The
contracting officer found that two of these three firms had not been
informed that the project was for the repair of the Ambrose Light Tower, and
that while the other subcontractor had been so informed, it had been
provided with only a portion of the specifications and drawings for the
project. The contracting officer also contacted a number of Brickwood's
references and found that although certain of the references had "positive"
or "favorable" opinions regarding Brickwood's performance, none of the
referenced projects involved were similar to the Ambrose Light Tower repair
project, in that they did not require underwater welding. Id. at 3-4.
While performing the responsibility review, the contracting officer
requested, by letters dated April 4, that each bidder extend its bid
acceptance period from
April 27 to May 31, 2002. Protest, exh. 5, Contracting Officer's Letter to
Brickwood (Apr. 4, 2002); Agency Report at 1. The contracting officer did
not receive a bid extension from Brickwood, and, by letter dated April 10,
again requested that Brickwood furnish "a written extension" to its bid
acceptance period. Agency Report, exh. 4, Contracting Officer's Letter to
Brickwood (Apr. 10, 2002).
Shortly thereafter, the contracting officer determined that Brickwood was
nonresponsible. Because Brickwood is a small business concern, the
contracting officer referred the matter to the SBA for consideration under
the SBA's certificate of competency (COC) procedures. Agency Report, exh.
6, Contracting Officer's Referral of Brickwood to SBA (Apr. 11, 2002). On
that same date, the contracting officer again requested that Brickwood
submit a written bid extension, informing Brickwood that "it is imperative
that you submit a written extension of your bid acceptance period until 31
May 2002 because without the extension the [SBA] will most likely not
entertain your [COC] application unless your bid acceptance period is still
active." Agency Report, exh. 5, Contracting Officer's Letter to Brickwood
(Apr. 11, 2002).
The SBA informed Brickwood by letter dated April 16 that Brickwood had been
determined nonresponsible by the contracting officer and stated the bases
for the contracting officer's determination. Agency Report, exh. 7, SBA's
letter to Brickwood (Apr. 16, 2002). This letter explained the COC process
and invited Brickwood to respond to each of the contracting officer's bases
for the nonresponsibility determination. The SBA's letter added:
[A]s of this date, you have not extended your bid. If you intend to
participate in the COC process so as to potentially receive award, IT IS
IMPERATIVE that you provide a bid extension to the Contracting Officer and
include a signed copy with your application materials when submitted to the
SBA. The SBA will not perform a COC review on a firm whose bid cannot be
accepted due to an expired [bid] acceptance period.
Brickwood submitted its COC application to the SBA on April 23 (1 day before
the April 24 filing deadline). Agency Report, exh. 8, Brickwood's COC
Application. However, despite the SBA's request, Brickwood did not provide
a bid extension. Rather, Brickwood stated that although other surety
companies were available to "bond this project" if required, Brickwood's
"present bonding company does not want to extend the bid," and that "[t]he
request is untimely." Brickwood added that "it is the policy of the Coast
Guard to make contract awards in a fair and timely manner," and that "[t]he
acceptance time for this bid expires Saturday, April 27, 2002, and we are
confident the Coast Guard plans to award the project to us." Id. at 2.
By letter dated April 25, Brickwood advised the SBA that Brickwood
understood that the SBA needed until May 6 to process the COC, and if this
was so, the Coast Guard's referral of the matter to the SBA was "untimely."
Agency Report, exh. 9, Letter from Brickwood to SBA (Apr. 25, 2002).
By letter dated April 25, the SBA informed the contracting officer that
because Brickwood had not extended its bid, it would "not process the case,"
given that the "SBA's final decision would likely be made no earlier than
May 6, 2002," and "any decision (positive or otherwise) would be moot."
Agency Report, exh. 10, SBA's Letter to Contracting Officer (Apr. 25, 2002),
at 2.
Brickwood states that on April 26, by facsimile to the contracting officer,
it extended its bid acceptance period to May 31. Protest at 2; exh. 9,
Brickwood Letter to Contracting Officer (Apr. 26, 2002). As discussed
below, the contracting officer advises that it did not receive this
facsimile on that date, but did not receive this message until May 1, after
the bid had expired.
By letter dated April 29, the SBA informed the contracting officer (and
Brickwood by copy) that because Brickwood had not extended its bid, "the
firm's bid is no longer valid and cannot now be accepted," and accordingly,
the SBA was discontinuing its COC review. Agency Report, exh. 13, SBA
Letter to Contracting Officer (Apr. 29, 2002).
By letter that same day, Brickwood wrote the Coast Guard "solicitation
ombudsman," complaining that the contracting officer's referral of his
responsibility determination to the SBA was "untimely," and requesting that
the Coast Guard "confirm the contracting officer did not act properly and
this contract be awarded to us." Brickwood attached to this letter a copy
of the SBA's April 29 letter informing the contracting officer that the SBA
had discontinued its COC review. Agency Report, exh. 14, Brickwood's Letter
to Coast Guard Solicitation Ombudsman
(Apr. 29, 2002).
Also on that date the contracting officer notified Brickwood by facsimile
transmission that when he had arrived at work, he had found a facsimile
coversheet (dated April 26) from Brickwood with nothing attached to it.
Agency Report, exh. 15, Contracting Officer's Facsimile to Brickwood.
Brickwood responded by facsimile on May 1, including as an attachment a
written bid extension dated April 26. Agency Report, exh. 16 (Brickwood
Facsimile to Contracting Officer (May 1, 2002) and attach. (Brickwood Letter
to Contracting Officer (Apr. 26, 2002)).
On May 2, the contracting officer informed Brickwood that he questioned "the
legitimacy of the '26 April extension letter'" that the contracting officer
asserts he first received on May 1, given, among other things, Brickwood's
previous failure to extend the acceptance period as requested as well as its
failure to mention its bid extension in any of its previous conversations
and correspondence. The contracting officer informed Brickwood that its bid
had expired and the bid extension received on May 1 was considered untimely
and a "futile attempt . . . to revive an expired bid." Agency Report,
exh. 18, Contracting Officer's Letter to Brickwood (May 2, 2002). This
protest followed.
Brickwood first argues that the "Coast Guard had an obligation to refer in a
timely manner [its determination that Brickwood was nonresponsible] to the
SBA in order that the SBA would have 15 days to review the referral without
requiring that Brickwood extend its bid," so that the Coast Guard cannot
make award to another bidder and must make the award to Brickwood. Protest
at 3.
Contracts may only be awarded to responsible prospective contractors, and
accordingly, before awarding a contract, a contracting officer must make an
affirmative determination that the prospective contractor is responsible.
Federal Acquisition Regulation (FAR) � 9.103(a), (b); 50 State Sec. Serv.,
Inc., B-272114, Sept. 24, 1996, 96-2 CPD � 123 at 4. To be determined
responsible, a prospective contractor must, among other things, be able to
comply with the required performance schedule, have adequate financial
resources, and have the necessary organization, experience, operational
controls, and technical skills, or the ability to obtain them. FAR � 9.104;
50 State Security Serv., Inc., supra, at 4-5. The burden is on a
prospective contractor to affirmatively demonstrate its responsibility, and
in the absence of information clearly indicating that the prospective
contractor is responsible, the contracting officer must make a determination
of nonresponsibility. FAR � 9.103(b); 50 State Security Serv., Inc., supra,
at 5.
Where, as here, a contracting officer has made a negative determination of
responsibility in regard to a small business, the contracting officer is
required to suspend award and refer the matter to the SBA. FAR � 19.602-1;
Worthy Indus. Corp., B 240489, Nov. 27, 1990, 90-2 CPD � 428 at 3. The SBA
has conclusive authority to review the nonresponsibility determination by
issuing or declining to issue a COC. 15 U.S.C. � 637(b)(7)(A) (2000). The
SBA is required to issue or deny the COC within 15 business days after
referral of the matter by the agency, or a longer period if agreed upon by
the SBA and the contracting agency. FAR � 19.602-2; Worthy Indus. Corp.,
supra.
Section 14.404-1(d) of the FAR provides that:
[s]hould administrative difficulties be encountered after bid opening that
may delay award beyond bidders' acceptance periods, the several lowest
bidders whose bids have not expired . . . should be requested, before
expiration of their bids, to extend in writing the bid acceptance period
(with consent of sureties, if any) in order to avoid the need for
resoliciting.
In sum, the FAR requires that contracting officers assess the responsibility
of prospective contractors, and, if a prospective small business contractor
is determined nonresponsible, refer the matter of that contractor's
responsibility to the SBA for resolution under COC procedures. The FAR also
contemplates that such determinations may take more time than allowed for by
the bid acceptance period as initially set forth in the bids received, and
provides for this by authorizing contracting officers to request written
extensions from the bidders to their bid acceptance periods.
This is precisely what happened here. That is, the record reflects that the
contracting officer diligently reviewed the matter of Brickwood's
responsibility, determined Brickwood nonresponsible, and promptly referred
the matter to the SBA as required. The contracting officer also recognized
during this process that there was a possibility that bid extensions might
be necessary because of the problems he was encountering regarding
Brickwood's responsibility, and accordingly, requested that bidders submit
bid extensions--which each requested bidder, with the exception of
Brickwood, promptly did. AR, exh. 11, Contracting Officer's Letter to SBA
(Apr. 26, 2002).
There is simply no basis for the protester's claim that the contracting
officer's referral of Brickwood to the SBA was "untimely." Not only is
there no evidence in the record that the contracting officer proceeded in an
improper or untimely manner, we find no regulation or other legal
requirement that provides that a contracting officer's referral of a small
business bidder to the SBA for a COC must take place at such a time in the
process so as to permit the SBA to make its COC determination prior to the
expiration of the bidder's initial bid acceptance period. Accordingly, we
find this basis of Brickwood's protest to be without merit.
Brickwood next argues that it did in fact extend its bid acceptance period
as requested by the agency. In support of this assertion, Brickwood has
provided our Office with an affidavit from the Secretary/Treasurer of
Brickwood wherein she provides that "on Friday, April 26, 2002, I sent a
letter by telefacsimile to . . . [the] Contracting Officer for the United
States Coast Guard, extending Brickwood's bid on the Ambrose Light Tower
project." The Secretary/Treasurer further states that "[t]he transmission
was completed without error, and I received a receipt for the fax
transmission showing both the cover and letter, a total of two pages, were
transmitted properly." Protester's Submission (May 23, 2002), attach.,
Affidavit of Brickwood's Secretary/Treasurer (May 23, 2002), at 1.
Brickwood has also submitted, in support of this assertion, a two-line
facsimile receipt, showing the destination (the Coast Guard's facsimile
number), the start time and date
(April 26 at 2:58 p.m.), the number of pages (two), and the result ("OK").
Id., attach., Facsimile Receipt.
In response, the Coast Guard has submitted a detailed declaration from its
contracting officer, in which the contacting officer explains that he never
received Brickwood's bid extension by facsimile or otherwise prior to the
expiration of Brickwood's bid. The contracting officer states that the
facsimile machine to which Brickwood allegedly transmitted its extension is
in the contracting officer's office and "is located immediately adjacent to
the printer for [his] computer." The contracting officer adds that
"[d]uring a normal workday, [he] check[s] the fax machine on the average at
least 5 times an hour when [he] pick[s] up documents from [his] printer or
when [he] transmit[s] or receive[s] faxes," and that in his absence, his
"co-workers routinely place faxes and mail on [his] desk." The contracting
officer continues by stating that he was at his office on April 26 "until
just after 4:30 [p.m.]," as evidenced by various e-mails that he transmitted
on that date, and that he did not receive any facsimile from Brickwood until
April 29, when he received the previously mentioned facsimile coversheet
from Brickwood with nothing attached to it. The contracting officer also
notes that he is unaware of any problems with the facsimile machine, and has
never received any complaints regarding the machine. Agency Supplemental
Report, Declaration of the Contracting Officer, at 1-3.
When an agency requests an extension in the bid acceptance period, the
burden of ensuring agency receipt of a bid extension is on the bidder.
Discount Machinery & Equip., Inc., B-244392, Oct. 15, 1991, 91-2 CPD � 334
at 3. Moreover, bidders using facsimile transmission to file documents
assume the risk of nonreceipt by the agency, Comspace Corp., B-277540, Oct.
24, 1997, 97-2 CPD � 111 at 3, and a bidder's evidence of its facsimile
transmission does not establish receipt where the agency denies receipt and
there is no other conclusive, contemporaneous evidence of receipt. Southern
CAD/CAM, B-244745, Nov. 13, 1991, 91-2 CPD � 453 at 3.
Although Brickwood asserts that on April 26, it submitted by facsimile its
express extension of its bid to the Coast Guard, and has provided a
facsimile receipt evidencing that its transmitted a two-page document to the
Coast Guard, the Coast Guard states that it never received this extension on
April 26, but rather, received it on May 1, well after Brickwood's bid had
expired. Given the Coast Guard's detailed explanation regarding its
non-receipt of the protester's facsimile transmission, and the lack of any
evidence demonstrating that the Coast Guard actually received Brickwood's
transmission before its bid expired, we find no basis to object to the
agency's determination that Brickwood did not timely extend its bid.[3] See
Discount Machinery & Equip., Inc., supra.
The protest is denied.
Anthony H. Gamboa
General Counsel
-------------------------
[1] The Ambrose Light Tower, which is located in lower New York Harbor
(approximately 7.5 miles offshore in 95 feet of water at low tide), was
damaged when a ship collided with it in January 2001. Agency Report, exh.
6, Contracting Officer's Determination and Findings Regarding Brickwood's
Responsibility, at 1.
[2] Dun & Bradstreet is an independent reporting service that makes its
reports available to the public for evaluating the financial positions of
companies. Such reports are routinely used by contracting agencies in
evaluating contractor responsibility. See Federal Acquisition Regulation
(FAR) � 9.105-1(c)(6); International Shipbuilding, Inc., B-257071.2, Dec.
16, 1994, 94-2 CPD � 245 at 4-5 n.2.
[3] In its comments on the agency report submitted on May 20 and 23, the
protester argues for the first time that the agency should revive and accept
Brickwood's bid because the agency failed "to act in a reasonable and timely
manner with respect to Brickwood's bid" and because there would be no
prejudice to the competitive bid system in reviving Brickwood's bid. This
argument could and should have been raised when Brickwood filed its initial
protest with our Office on May 6, given that the agency had unequivocally
advised Brickwood on May 2 both that its bid had expired and that it would
not be permitted to revive its bid. Our Bid Protest Regulations do not
contemplate the untimely, piecemeal presentation of protest issues, and in
this regard, a protester may not delay raising additional protest issues
where, as here, the protester should have been aware of those grounds at the
time of filing its initial protest. 4 C.F.R. � 21.2(a)(2) (2002);
Robbins-Gioia, Inc., B-274318 et al., Dec. 4, 1996, 96-2 CPD � 222 at 19
n.20; Hung Myung (USA) Ltd., Inc.; Containertechnik Hamburg GmbH & Co.,
B-244686 et al., Nov. 7, 1991, 91-2 CPD � 434 at 7. Accordingly, we decline
to consider this protest basis on the merits.