TITLE:  Oregon Electric Construction, Inc. dba Integrated Systems Group, B-294279, September 27, 2004
BNUMBER:  B-294279
DATE:  September 27, 2004
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   Decision

   Matter of:   Oregon Electric Construction, Inc. dba Integrated Systems
Group

   File:            B-294279

   Date:              September 27, 2004

   Darin D. Honn, Esq., and Jason W. Alexander, Esq., Sussman Shank, for the
protester.

   Mark G. Garrett, Esq., Department of Agriculture, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly rejected bid as nonresponsive where qualification in bid
cover letter rendered bid ambiguous; qualification made it uncertain
whether bidder unequivocally offered to perform in accordance with terms
of solicitation amendment.

   DECISION

   Oregon Electric Construction, Inc. dba Integrated Systems Group
(Integrated) protests the rejection of its apparent low bid as
nonresponsive under invitation for bids (IFB) No.A R6-9-04-07, issued by
the Department of Agriculture, Forest Service, for improvement of the
Quinault wastewater collection and treatment facility in Washington. 
Integrated contends that the agency unreasonably determined that its bid
cover letter rendered uncertain whether the firm intended to perform in
accordance with the solicitation's requirements for operation and
maintenance by the contractor of the wastewater treatment plant.

   We deny the protest.

   The IFB, issued on March 5, 2004, contemplated the award of a fixed-price
contract for a base item (for improvements to the wastewater treatment
facility) and two option items (for grinder pump station improvements and
drain field expansion).  In addition, the amended IFB called for the
operation and maintenance of the wastewater treatment plant. 
Specifically, amendment No. 3 to the IFB provided that

    
the contractor

   shall be responsible for the operation and maintenance of the Quinault
wastewater treatment plant from the effective date of the notice to
proceed of the Base Item until 3 months after final acceptance by the
Contracting Officer of the Base Item.

   IFB amend. 3, P C.6.

   Integrated acknowledged receipt of amendment No. 3.  Its bid cover letter,
however, provided terms different from that amendment's plant operation
terms.  In particular, the bid cover letter provided that "[o]peration of
the plant is included for duration of the construction project until 3
months after substantial completion."  Integrated Bid Cover Letter, Apr.
27, 2004, at 1.

   The agency found that the cover letter statement materially qualified
Integrated's bid, specifically noting that the offered period--3 months
after "substantial completion"--was materially different from the
performance period called for by the amended IFB--3 months after final
acceptance of the base item.  The agency found that the different terms
not only limited Integrated's performance risk, but also lessened the
rights of the agency under the amended solicitation's "final acceptance"
provision.  In this regard, under the amended IFB, the agency was to
maintain control of the timing of the termination of the contractor's
plant operation period, since it was tied to an affirmative action by the
agency--i.e., final acceptance of the base item work.  The agency
determined that Integrated's bid was ambiguous and rejected it as
nonresponsive.  This protest followed.

   To be responsive and considered for award, a bid must contain an
unequivocal offer to perform, without exception, the exact thing called
for in the solicitation, so that, upon acceptance, the contractor will be
bound to perform in accordance with all of the IFB's material terms and
conditions.  If in its bid (including its bid cover letter), a bidder
conditions or modifies a material solicitation requirement (such as a
performance period), limits its liability to the government, or limits the
rights of the government under a resulting contract, then the bid must be
rejected as nonresponsive.  See Tel-Instrument Elecs. Corp., Ba**291309,
B-291309.2, Nov. 20, 2002, 2002 CPD P 203 atA 2-3; Interstate Constr.,
Inc., Ba**281465, Feb. 10, 1999, 99-1 CPD P 31 at 2; Balantine's South Bay
Caterers, Inc., Ba**250223, Jan. 13, 1993, 93-1 CPD P 39
at 3-4.  Further, a bid that is nonresponsive on its face may not be made
into a responsive bid through post-bid-opening clarifications, and
mistake-in-bid procedures may not be used to render the bid responsive. 
See National Office World, Inc., B-224120, Sept. 5, 1986, 86-2 CPD P 270
at 2.

   Here, although the protester acknowledged receipt of amendment No. 3, its
bid cover letter offered a materially different performance period than
was required under the amendment.  As the agency points out, Integrated's
cover letter is based on a subjective, indefinite standard--"substantial
completion" of unidentified work.  As a result, the cover letter limits
the agency's right under amendment No. 3 to require the contractor to
operate the plant until final acceptance of the base item.[1]  The cover
letter thus qualifies a performance term of the amended IFB, materially
affecting the rights and obligations of the contractor and agency. 
Accordingly, the agency properly rejected the bid as nonresponsive.[2]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Integrated argues that the clear meaning of the language in its cover
letter is that the contractor would operate the plant until 3 months after
"substantial completion" of the entire "construction project," consisting
of the base item and both option items--in the protester's view, this
provides for a period of operation that in fact is longer than the period
called for by the amendment (3 months after acceptance of the base item
alone).  The protester's argument is unpersuasive.  It simply is not clear
that "substantial completion" of the "construction project" represents a
point equivalent to (or beyond) the point at which the agency takes final
acceptance of the base item.  Thus at best the language in the cover
letter is ambiguous as to the offered performance period.

   [2] Contrary to the protester's contention, it is also irrelevant that the
firm submitted its price for the plant operation work based on the same
estimated amount of time (18A months) for operating the plant as was
provided on the bid schedule and used by all of the bidders.  As discussed
above, the protester's bid was rendered nonresponsive due to its cover
letter's qualification of the required performance period, a defect which
is not cured by its bid schedule pricing.