TITLE:  SOS International, Ltd., B-295533.2; B-295533.3, July 1, 2005
BNUMBER:  B-295533.2; B-295533.3
DATE:  July 1, 2005
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   Decision

   Matter of: SOS International, Ltd.

   File: B-295533.2; B-295533.3

   Date: July 1, 2005

   Jessica C. Abrahams, Esq., Alison L. Doyle, Esq., and Jason N. Workmaster,
Esq., McKenna Long & Aldridge LLP, for the protester.

   Kristen A. Bennett, Esq., Moore & Lee, LLP, for McNeil Technologies, Inc.,
an intervenor.

   Sheryl A. Butler, Esq., U.S. Department of Justice, Drug Enforcement
Administration, for the agency.

   Monica P. Anatalio, Scott H. Riback, Esq., and John M. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of the
decision.

   DIGEST

   1.  Bid that included tiered pricing where solicitation did not
contemplate bidding on such a basis is nonetheless responsive where record
shows that awardee's pricing scheme did not condition the bid in any way,
and bid is low using any of the tiered prices.

   2.  Where solicitation provided for award of contract on indefinite
quantity basis, bid that offered larger quantity than maximum specified in
solicitation is responsive, where bid did not limit government's right to
purchase only up to the maximum quantity specified in the solicitation or
otherwise condition the firm's pricing or performance on the government's
buying the larger quantity. 

   DECISION

   SOS International Ltd. protests the award of a contract to McNeil
Technologies, Inc. under Drug Enforcement Agency (DEA) request for
proposals (RFP) No. DEA-04-R-0012, for linguistic services in support of
law enforcement efforts at DEA's San Diego Field Division.  SOS contends
that DEA should have rejected McNeil's bid as nonresponsive.

   We deny the protest.

   The solicitation contemplated the award of an indefinite-delivery,
indefinite-quantity (IDIQ) contract for a base year, with four 1-year
options, to provide law enforcement support services, including
interception, monitoring, translation and transcription.  The RFP was
issued as a two-step sealed bid acquisition under Federal Acquisition
Regulation (FAR) Section 14.5.  During the first step, interested firms
submitted technical proposals that were evaluated to determine their
acceptability.  During the second step, a formal invitation for bids (IFB)
was issued to those firms found to have submitted acceptable technical
proposals.  See id. 

   During the course of the acquisition, the agency issued a number of
amendments to the solicitation.  Relevant here, contract line item number
(CLIN) 0003 erroneously listed a maximum of 66,000 hours instead of the
agency's actual requirement, which was for 50,000 hours.  Consequently,
DEA amended the solicitation to reflect the 50,000 hour figure. 

   The agency received 10 technical proposals, seven of which were found to
be technically acceptable.  The seven firms submitting the technically
acceptable proposals were thereafter requested to submit bids.  At bid
opening, McNeil's was the apparent low bid.  After reviewing McNeil's bid,
the agency initially determined that it was nonresponsive because McNeil
had used tiered pricing in CLIN 0003, 0004, 0005, 0006 and 0009.  More
specifically, while the solicitation called for a single unit price for
each CLIN, McNeil's bid included more than one price for each CLIN, with
the price varying depending upon the quantity ordered (for example, under
CLIN 0004, McNeil bid $26.93 per hour for the first 400 hours, and $24.03
for all hours in excess of 400 hours, up to the specified maximum quantity
of 15,000 hours).  In addition, McNeil's bid sheet showed the original
66,000 hour maximum quantity for CLIN 0003, rather than the amended 50,000
hour figure.  Finally, for CLIN 0002, McNeil's bid schedule included the
title "team leader" rather than the term "shift supervisor," as provided
for in the solicitation.  Based on these perceived deficiencies, the
contracting officer advised McNeil that its bid had been found
nonresponsive. 

   McNeil protested the agency's decision to our Office.  In response to that
protest, the agency advised us that it intended to reconsider the McNeil
bid, and we dismissed McNeil's protest as academic.  (B-295533, Jan. 10,
2005).  Thereafter, McNeil and the agency engaged in several rounds of
correspondence.  As a result of that correspondence, McNeil was permitted
to substitute the correct 50,000 hour maximum quantity for CLIN 0003
(replacing the 66,000 hour figure), to correct minor mathematical errors
in its overtime rates, and to substitute the term "shift supervisor" for
"team leader" in its bid schedule.  The seven technically acceptable bids
then were reevaluated, and it was determined that McNeil's revised bid of
$12,252,065 was low; SOS's bid of $13,889,265 was next low.  Consequently,
the contract was awarded to McNeil on that date, and this protest
followed. 

   TIERED PRICING

   SOS asserts that the agency's initial position that McNeil's bid was
nonresponsive was correct.  Specifically, the protester contends that
McNeil's bid should have been rejected as nonresponsive based on its
tiered pricing, which was inconsistent with the IFB's pricing scheme
calling for a single price for each CLIN.  SOS cites in

   support of its position our decision in Valix Fed. P'ship I, B-250686,
Feb. 1, 1993, 93-1 CPD paragraph 84, which, it claims, stands for the
proposition that a bid that offers tiered pricing where it is not
contemplated by the solicitation is nonresponsive and must be rejected,
where the tiered pricing scheme enables the bidder to offer more favorable
pricing.  The protester maintains that it may well have been able to offer
more favorable pricing had it known that tiered pricing was permissible.

   To be responsive, a bid as submitted must represent an unequivocal offer
to comply with the IFB's material terms, which includes the requirement
for a firm, fixed price.  VSA Int'l Corp., B-270204, Feb. 16, 1996, 96-1
CPD paragraph 101 at 2.  A bid is nonresponsive, and must be rejected, if
it is ambiguous as to price and is low only under one interpretation. 
Southern Atl. Servs., Inc., B-252419, June 2, 1993, 93-1 CPD paragraph 418
at 3.

   McNeil's bid was responsive.  In this regard, the record shows that
McNeil's bid was low under all possible calculations, including where only
the firm's higher hourly rates are applied.[1]  In addition, McNeil's
tiered pricing neither expressly nor implicitly limits the firm's
obligation to perform in exact accordance with the requirements of the
solicitation.  Rather, the only effect of McNeil's tiered pricing would be
to reduce the cost of performance as larger quantities are ordered.  Under
these circumstances, McNeil's bid's deviation from the pricing scheme
called for by the IFB was immaterial and therefore did not render its bid
nonresponsive.  See
RR Donnelley, Inc. B-294395, Sep. 15, 2004, 2004 CPD paragraph 199 (bid
based on two different shipping weights rather than the single weight
called for by IFB is responsive where bid would be low applying either of
the two weights, and deviation did not operate to qualify bidder's
obligation to perform in accordance with IFB requirements).

   Our decision in Valix is distinguishable from the situation here.  While
not discussed in the decision, the record there shows that, unlike
McNeil's bid here, the bid in question would not have been low under all
circumstances (specifically, if only the minimum quantities were
ordered).  It is this consideration that supports the conclusion there
that the tiered pricing rendered the bid nonresponsive, not the mere fact
that tiered pricing was offered.  Since, in contrast, McNeil's bid would
be low under all circumstances, McNeil's bid is responsive.  See also Copy
Duplicating Prods., Inc., B-245381, Dec. 30, 1991, 92-1 CPD paragraph 15,
cited in Valix (where, using the higher of the offered tiered prices, a
bid was not low for the base year of the contract, the bid was properly
rejected as nonresponsive).  Accordingly, we find nothing in McNeil's use
of a tiered pricing scheme that afforded it an improper advantage over the
other bidders. 

   OVERSTATED MAXIMUM QUANTITY

   SOS argues that McNeil's bid was nonresponsive because it was based on an
incorrect maximum number of hours for CLIN 0003.  However, a bid based on
a larger quantity than is required by the solicitation is nevertheless
responsive, so long as it is not conditioned on the government's award of
a quantity larger than that called for under the solicitation, and the
solicitation does not preclude award of a quantity smaller than the
maximum quantity specified.  Charles V. Clark Co., Inc,

   B-196712, Mar. 12, 1980, 80-1 CPD paragraph 194 at 2-3. 

   Here, as noted, this is an IDIQ contract under which the government is
obligated to order only the minimum guaranteed quantities, but may order
additional quantities, up to the maximum specified in the solicitation. 
Thus, the agency is obligated to purchase the 1,000 hour minimum quantity
under CLIN 0003, but may elect to purchase a larger quantity up to the
specified maximum of 50,000 hours.  As McNeil's bid did not condition its
obligation to perform on the government's ordering the erroneous maximum
quantity (66,000 hours), it follows that the agency could order any
quantity up to the correct lower maximum of 50,000 hours without changing
McNeil's performance obligation, and would not be obligated to order the
additional 16,000 hours specified in McNeil's bid.  McNeil's bid's
inclusion of the incorrect maximum quantity for CLIN 0003 therefore was
immaterial and did not render the bid nonresponsive.[2]

   POSITION TITLE

   SOS argues that the McNeil bid was nonresponsive because it referred to
the position of "team leader" rather than "shift supervisor," as stated in
the bid schedule. 

   SOS maintains that this rendered the bid nonresponsive because it was
unclear what type of employee McNeil was offering, and because a shift
supervisor is exempt from the requirements of the Service Contract Act,
whereas a team leader might not be exempt. 

   This argument is without merit.  While SOS is correct that McNeil's bid
used the incorrect term "team leader" in the bid schedule, the bid
schedule also includes an explicit reference to section C.6.2 of the
statement of work, which is entitled "shift supervisor" and specifically
states that the employee in question is not subject to the Service
Contract Act.  (Subsequent subsections of the statement of work outline
the duties and responsibilities of the shift supervisor.)  Consequently,
although McNeil used an incorrect term in its bid schedule, we find that
it was sufficiently clear that the firm was offering what the IFB
required, such that there was no ambiguity as to what the firm would be
obligated to provide during performance.  This discrepancy therefore did
not render the bid nonresponsive.[3]

   The protest is denied. 

   Anthony H. Gamboa
General Counsel

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

   [1] McNeil's original bid, using tiered pricing and the erroneous maximum
number of 66,000 hours for CLIN 0003 (bid prices were calculated using the
CLIN maximum hours), was $13,714,599.65.  AR, exh. 5.  Its bid calculated
using the higher of McNeil's hourly rates and correcting the maximum
number of hours for CLIN 0003 to 50,000 hours was $12,252,065, AR, exh.
6.  Its actual revised bid--that is, the bid that corrected the number of
hours in CLIN 0003 but included McNeil's tiered pricing--was
$11,792,199.65.  AR, exh. 5.  These various figures are in comparison to
SOS's bid of $13,889,265, which is higher than any of the figures
calculated for McNeil.  AR, exh. 4. 

   [2] Both the agency and SOS have characterized this issue as one relating
to the propriety of the agency's permitting correction of a mistake in
McNeil's bid.  This is a mischaracterization of the issue.  Since the bid
was responsive as submitted, the agency was not required to obtain a
corrected version of the McNeil bid schedule in order to make award to the
firm.  Consequently, the agency's action in permitting McNeil to correct
the quantity had no effect on the propriety of the award.

   [3] SOS also argues that the agency improperly allowed McNeil to change
its overtime pricing after bid opening.  However, the overtime prices were
not evaluated to determine the low bidder; these changes to the McNeil bid
therefore had no effect on the competition, and did not prejudice SOS.