TITLE:  DLH Construction and Trucking Company, Inc., B-292578, October 10, 2003
BNUMBER:  B-292578
DATE:  October 10, 2003
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DLH Construction and Trucking Company, Inc., B-292578, October 10, 2003

    
Decision
    
    
Matter of:   DLH Construction and Trucking Company, Inc.
    
File:            B-292578
    
Date:              October 10, 2003
    
Jullane J. Jackson for the protester.
Sanford A. Solomon, Esq., and Ronald O. Wietecha, Esq., U.S. Army Corps of
Engineers, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Contracting agency properly rejected bid as nonresponsive where the bid
required agency to exercise the first and second option year at time of
award where the solicitation did not call for the agency to do so, and
thus materially altered the rights of the contracting agency.
DECISION
    
DLH Construction and Trucking Company, Inc. protests the rejection of its
bid as nonresponsive and the subsequent award of a contract to Holly
Marine Towing, Inc. under invitation for bids (IFB) No. DACW23-03-B-0001,
issued by the Army Corps of Engineers, Chicago District, for various
quantities of stone material. DLH contends that the Corps erroneously
rejected its bid as nonresponsive.
    

   We deny the protest.
    
The IFB, which was issued on February 11, 2003 and amended three times
prior to bid opening, provided for the award of an
indefinite-delivery/indefinite-quantity
fixed-price contract for a base period with four 1-year option periods. 
IFB at 38.  The successful contractor is required to furnish, deliver and
unload the stone material onto a government-furnished stone dock located
on the Calumet River in Chicago, Illinois.  The stone material furnished
under this procurement will be used to repair various navigation
structures located in Illinois and Indiana and as set forth in the
statement of work (SOW) is divided into three size categories:  Type A
stone
(8-15 tons), Type B stone (3-7 tons), and Type C stone (1-100 pounds). 
IFB amend. 1, SOW at 3. 
    
The bid schedule set forth contract line items (CLINs) for the base and
each option year requirements and bidders were required to offer unit and
extended prices for each.  CLIN 0001 required Types A and B stone to be
furnished, delivered, and unloaded during the base period.  CLIN 0002, the
first option period (October 1, 2003 through September 30, 2004), also
required Types A and B stone.  CLINs 0003-0005, the second (October 1,
2004 through September 30, 2005), third and fourth option periods,
respectively, each required Types A, B, and C stone to be furnished,
delivered, and unloaded onto the dock on the Calumet River.  IFB
Schedule.  The IFB provided that for purposes of award, the agency would
add the total price for all options to the total price for the base
requirements and cautioned bidders that evaluation of the options would
not obligate the agency to exercise the option periods.  IFB at 20.  The
IFB also stated:
    
Failure to submit a unit price for all items listed will be considered as
a material deviation from the requirements of the solicitation and the bid
will be rejected.  Notwithstanding any other provision of these
specifications concerning the method of award, the solicitation will be
awarded as a whole to the lowest responsive, responsible bidder.
IFB at 44.
    
Six bids were received and opened on the March 18 opening date.  The four
lowest evaluated bids were as follows:
    
               Bidder
                                                              Total Bid
    
               Specification Stone Products                      $10,093,000
              
DLH                                                               
$10,346,550
               Kadinger Marine Service                             
$10,925,900
               Holly Marine                                                 
$11,125,850
    
Agency Report (AR) exh. A, Abstract of Bids.
    
DLH became the apparent low eligible bidder after Specification Stone
Products* bid was rejected for reasons not relevant here.  Upon review of
DLH*s bid package, the contracting officer discovered that DLH*s bid was
accompanied by a cover letter, which stated among other things, that
*[DLH] will only accept award of A, B, and C together.*  AR exh. B,
Protester*s Cover Letter (Mar. 18, 2003).  This reference to *A, B, and C*
was not elsewhere explained in the bid package.[1]  Since Type C stone
would not be purchased until the second option year, the contracting
officer concluded that DLH had imposed a condition for award (that is,
award of at least the base, first, and second option year requirements)
that effectively limited the agency*s rights under the options provision
of the IFB which gives the agency the discretion to exercise or not
exercise option year requirements.  Consequently, the contracting officer
determined that DLH*s bid was nonresponsive.  On June 25, the contracting
officer awarded a contract to Holly Marine as the lowest responsive,
responsible bidder.[2]  This protest followed.
    
DLH explains that the condition was included in its bid package because
the firm wanted *to inform the Corps of Engineers that DLH*s bid was
contingent upon one bidder being awarded all items* to ensure that *the
items not be awarded piecemeal to multiple bidders.*  Protest at 5, 7;
Protester*s Comments at 5.  Moreover, the protester insists that the
condition was never intended to restrict the agency*s discretion to
exercise the option requirements set forth in the solicitation in any
manner it chose.  DLH contends that, in any event, the agency should have
waived this condition as a minor informality in the interest of obtaining
the most cost savings to the government.  Protest at 4.
    
All bidders must compete for sealed bid contracts on a common basis.  No
individual bidder can reserve rights or immunities that are not extended
to all bidders by the conditions and specifications advertised in the
IFB.  Interstate Constr., Inc.,
B-281465, Feb. 10, 1999, 99-1 CPD P: 31 at 2.  Therefore, in order to be
responsive and considered for award a bid, including any unsolicited
information such as cover letters or extraneous documents submitted with
the bid, must contain an unequivocal offer to perform, without exception,
the exact thing called for in the IFB, in total conformance to the
material terms of the solicitation.  Vista Scientific Corp., B-233114,
Jan. 24, 1989, 89-1 CPD P: 69 at 2.  If in its bid a bidder attempts to
impose conditions that would modify material requirements of the IFB,
limit its liability to the government, or limits the rights of the
government under any contract clause, then the bid must be rejected. 
Walashek Indus. & Marine, B-281577,
Jan. 29, 1999, 99-1 CPD P: 30 at 3.  Further, the responsiveness of a bid
must be ascertained from the bid documents themselves, not from post-bid
opening clarifications or corrections.  To permit explanations after bid
opening would be tantamount to granting an opportunity to submit a new bid
that could be responsive or nonresponsive at the bidder*s option based on
information available to the bidder after bid opening.  Interstate
Constr., Inc., supra, at 5.
    
Here, the contracting officer reasonably concluded that the effect of the
condition set forth in DLH*s bid cover letter was to alter the rights of
the agency by conditioning the protester*s acceptance of an award on the
Corps exercising at least the first and second year option periods at the
time the contract was awarded.[3]  The protester insists that the
condition in its bid is immaterial and could be waived because the stated
condition was simply intended to prevent the Corps from making multiple
awards rather than restricting the agency*s discretion to exercise its
rights under the options provision in the IFB.  This argument is
untenable.  The IFB provision quoted above make it clear that the Corps
intended to make a single award to the lowest responsive, responsible
bidder and there is no indication in the solicitation that multiple awards
are contemplated.[4]  The agency reasonably concluded that the condition
in the protester*s bid was material because it provided that DLH would not
accept an award unless the contract included at least the first two option
year requirements.  Accordingly, the language in DLH*s cover letter
limited the rights of the agency with regard to exercising the options. 
Walashek Indus. & Marine, supra.  Award on the basis of this language
would extend benefits to DLH that were not available to any other bidder. 
Id.  Under these circumstances, DLH*s bid was properly rejected as
nonresponsive.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1]The record includes post-bid opening correspondence between the agency
and the protester in which the contracting officer sought clarification
from the protester regarding this statement in its bid cover letter. 
However, DLH*s post-bid opening explanations cannot change the status of
its bid with respect to whether it was responsive on its face at the time
of bid opening.  We note however, that DLH*s initial clarification letter
stated that *our pricing was premised upon the award . . . of both A, B,
and C stone throughout the duration of the contract.*  AR exh. C,
Protester*s Letter (June 3, 2003).
[2]The contracting officer rejected the next low bid submitted by Kadinger
Marine Service because the bidder declined to extend its bid acceptance
period.
[3]DLH does not disagree that under the terms of the solicitation only
Types A and B stone were required for the base period and that the supply
and delivery of Type C stone would not be required until the second option
period.
[4]To the extent DLH believes the IFB permitted multiple awards this would
create a material inconsistency with the express terms of the solicitation
that called for a single award; the resulting alleged ambiguity should
have been protested prior to bid opening.  Bid Protest Regulations, 4
C.F.R. S:21.2(a)(1) (2003).