TITLE: Orion Construction Company, Inc., B-294014, June 30, 2004
BNUMBER: B-294014
DATE: June 30, 2004
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Decision
Matter of: Orion Construction Company, Inc.
File: B-294014
Date: June 30, 2004
Thomas J. Kelleher, Jr., Esq., Smith, Currie & Hancock, for the protester.
Maj. Gregory R. Bockin and Charles D. Shults, Esq., Department of the
Army, for the agency.
Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where an invitation for bids (IFB) soliciting bids for multiple line items
contains clauses that permit the government to accept any item or
combination of items in the bid, the agency has the discretion to make a
partial award of any combination unless the IFB elsewhere contains express
language precluding such an award.
DECISION
Orion Construction Company, Inc. protests the award of a contract to
Dorado Services, Inc. under invitation for bids (IFB) No.
W9124C-04-B-0002, issued by the Department of the Army for demolition,
framing, and roofing work for a building located at Fort Jackson, South
Carolina. Orion essentially argues that the agency*s partial award of two
contract line items (CLINs) to Dorado was inconsistent with the IFB.
We deny protest.
The IFB was issued on February 16, 2004. The IFB identified five CLINs.
The agency reports that because of the size of the roof to be replaced,
the engineers were not certain that the projected funding would permit all
the re-roofing to be performed. Therefore, the engineers divided the work
into phases, which would give the agency the flexibility to award all or
part of the work depending on the prices received.
The CLINs as contained in the bid schedule reflect this approach, that is,
each CLIN reflected a part of the roof requiring re-roofing. Agency
Report, Tab 17, Contract Specialist*s Statement, at 1. Several provisions
of the solicitation advised bidders that the government reserved the right
to award all, none, or a combination of the line items. First, block 10
of Standard Form 1442, the IFB cover sheet, stated that *[t]he Government
reserves the right to award any, all, or any combination of line items.*
Second, in section B, entitled *Supplies or Services and Prices,* the IFB
repeated essentially the same language. Third, the solicitation
incorporated the clause at Federal Acquisition Regulation S: 52.214-19,
entitled *Contract Award-Sealed Bidding-Construction,* which provides that
*[t]he Government may accept any item or combination of items, unless
doing so is precluded by a restrictive limitation in the solicitation or
bid.* IFB at 200.
Five bids, including Orion*s, were received by bid opening. Orion was the
apparent low bidder for all five line items combined and also for CLIN
0001. However, based on the funding available for the project, the agency
determined to award CLINs 0002 and 0005 first because the roof areas
covered by these CLINs were leaking severely. Dorado was the low bidder
for CLINs 0002 and 0005, and the Army awarded Dorado a contract for these
two CLINs on April 26. Orion subsequently filed this protest with our
Office.
While not disputing that the agency lacked sufficient funds to award all
of the line items, or that Dorado was the low bidder for CLINs 0002 and
0005, Orion nevertheless contends that it should have received the award
because the solicitation established an intent to award CLIN 000l first
and, therefore, Orion, as the low bidder on CLIN 0001, as well as the low
bidder for the entire project, should have received an award.
Where, as here, an IFB allows an agency to accept any item or combination
of items, it has the discretion to make an award of less than all of the
line items, unless the IFB contains express language precluding such an
award. Fire Sec. Sys., Inc.,
B-284147, Feb. 23, 2000, 2000 CPD P: 31 at 3; Talbott Dev. Corp.,
B-220641,
Feb. 11, 1986, 86-1 CPD P: 152 at 2; Granite State Mach. Co., Inc.,
B-199644, Nov. 26, 1980, 80-2 CPD P: 396 at 5. The IFB here contains no
express language precluding a partial award and, in fact, the protester
appears to be seeking a partial award for CLIN 0001.
The protester cites two IFB provisions that it contends support its
position that the agency was required by the terms of the IFB to award
CLIN 0001 before any other CLIN. The first provision, entitled *Contract
Completion Date,* while identifying phase 1 as *Base Bid Item #0001,*
specifically provided that the government *has options to award all phases
or individual phases [of the work] and [set the] priority of the phases.*
IFB at 01045-35. By its terms, this provision does not support the
protester*s position. Rather, the provision appears entirely consistent
with the language in other parts of the IFB, quoted above, which permits a
partial award of any CLIN or combination of CLINs. The second provision
cited by the protester indicates that each phase of the work had a
separate performance period, and that potential liquidated damages would
apply to each phase separately. The provision further provides as
follows:
If more than one line item (phase) is awarded initially (or at a later
date), the performance period of the subsequent phase(s) will be adjusted
to 30 days instead of 120 days. For example only, if line items 0001,
0002, and 0003 are awarded initially, the performance period for 0002 and
0003 will be 30 days each.
IFB at 01045-3.
There is nothing in this quoted language that even remotely suggests that
the agency is precluded from awarding CLINs 0002 and 0005 but not CLIN
0001.
The protester also maintains that it relied upon an oral representation
from the contract specialist, allegedly made to another potential bidder,
that CLIN 0001 would be awarded first as the base bid item. The contract
specialist denies making any such representation. Even assuming that the
representation was made, it is well settled that oral advice given by
representatives of the contracting officer is not binding on the
government and a bidder relies on oral explanations of the solicitation at
its own risk. SAF Eng*g Assocs., Inc., B-275740, Mar. 19, 1997, 97-1 CPD
P: 118 at 3. This is especially true where the advice is inconsistent
with the solicitation*s express provisions.
In short, we see no basis to object to the agency*s award to Dorado.[1]
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The protester*s comments on the agency report raise a number of new
issues concerning the terms of the IFB or the award decision. These
issues, raised for the first time in the protester*s comments, are
untimely because they are based on information that was available to the
protester at the time it filed its initial protest, if not earlier. Bid
Protest Regulations, 4 C.F.R. S: 21.2(a) (2004).