TITLE:  McKinley Construction & Excavating, B-295547, March 3, 2005
BNUMBER:  B-295547
DATE:  March 3, 2005
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   Decision

   Matter of:   McKinley Construction & Excavating

   File:            B-295547

   Date:           March 3, 2005

   Edwin J. Broecker, Esq., Sommer Barnard Attorneys, PC, for the protester.

   Samar A. Shams, Esq., Department of Agriculture, 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

   Bid that acknowledges all amendments to an invitation for bids, but which
contains only the original version of the bid schedule, which was modified
by an amendment to increase the footage of pipe to be provided, is
nonresponsive because the bid is ambiguous regarding whether the bidder
intends to be bound to the original or amended quantity.

   DECISION

   McKinley Construction & Excavating protests the rejection of its bid as
nonresponsive under invitation for bids (IFB) No. IN-NRCS-2003, issued by
the Department of Agriculture for construction work on the Goose Pond
Phase 2 wetland restoration project.

   We deny the protest.

   Issued on October 12, 2004, the IFB solicited bids for an on-site
contractor to perform construction activities on nine separate wetland
restoration units.  The IFB contained a bid schedule calling for bids on
27 items corresponding to the construction activities identified in the
specifications.  The IFB provided that award would be based on the
aggregate of all items.  Prior to bid opening, the agency issued two
amendments to the solicitation.  This protest concerns amendment No. 1,
which changed the type of pipe to be used and included a revised bid
schedule in which the unit quantity for line item No. 16, 12-inch diameter
surface water pipe, was increased.[1] 

   On November, 17, five timely bids were received in response to the IFB,
and McKinley was the apparent low bidder at a price of $964,858.52.  The
next low bid was $1,368,947.70 and the government estimate was
$1,141,834.65.  While examining the bids, the contracting officer noted
that McKinley had made some mathematical errors and also discovered that,
while McKinley had acknowledged all amendments, it submitted its bid using
the wrong bid schedule.[2]  Specifically, McKinley used the original bid
schedule that listed the quantity for line item No. 16 as 218 lineal feet,
instead of the revised bid schedule of amendment No. 1 which increased the
quantity to 394 lineal feet.  As a result, McKinley appeared to have based
its bid on the wrong quantity for line item No. 16.  On November 30, the
protester was advised that it had submitted the wrong bid schedule and had
made several mathematical errors in its bid.  The protester subsequently
submitted the revised bid schedule with the mathematical errors corrected
and with the correct quantity for line item No. 16.  On December 6, the
protester was notified both orally and by letter that its bid had been
rejected as nonresponsive.  McKinley filed an agency-level protest on
December 13, which was denied by the agency on December 16.  McKinley
filed this protest with our Office on December 16.

   The protester contends that the agency's rejection of its bid as
nonresponsive was improper because the firm's use of the original
schedule, which did not include the additional units of piping,
constituted a minor informality that could be easily identified and
corrected.  The protester states that its bid specifically acknowledged
all amendments, including amendment No. 1, and thus acknowledged that the
firm was aware of, and would be bound by, the amendment, including the
increase in the quantity for line item No. 16.  The protester also argues
that its failure to use the revised bid schedule was caused by the
agency's failure to clearly indicate on the face of the revised bid
schedule that the schedule had, in fact, been revised and maintains that
the revised bid schedule did not clearly and unequivocally communicate the
changes required by amendment No. 1.[3]

   Generally, where a bidder does not submit its price on a revised bid
schedule listing an increased requirement, but instead submits its bid on
the original schedule, the mere acknowledgment of the amendment containing
the revised bid schedule is not sufficient to bind a bidder to provide the
increased quantity because it is not clear that the bidder has committed
itself to provide the additional quantity for the price set forth in the
bid.  See Harvey Honore Constr. Co., Inc., B-262071.2, Jan. 31, 1996, 96-1
CPD P 30 at 3 (bid was found nonresponsive where bidder acknowledged
amendment but submitted its bid on original bid schedule instead of
revised schedule provided by an amendment which increased the estimated
quantity of dirt to be excavated under construction contract). 
Application of that rule leads us to the conclusion that the agency
properly found the protester's bid to be nonresponsive.

   Here, the protester submitted a bid for a quantity of 218 lineal feet of
pipes, rather than for 394 lineal feet required by the revised bid
schedule.  Since it is not clear from the bid whether the protester
intended to be committed to the amendment's larger quantity or the
original schedule's lesser quantity, we can only conclude that, on its
face, McKinley's bid does not provide a firm commitment to what the IFB,
as amended, envisioned as the required work and, therefore, the bid
properly was rejected as nonresponsive.

   To the extent McKinley contends that its unit price for line item No. 16
represents its unit price for the increased quantity, a nonresponsive bid
cannot be made responsive by explanation after bid opening.  Environmental
Health Research & Testing, Inc., Ba**246601, Mar. 10, 1992, 92-1 CPD P 274
at 2.  Allowing McKinley to explain its bid after bid opening would, in
effect, give McKinley the advantage of electing to accept or reject the
contract by choosing whether to make its bid responsive.  Id.  Such a
situation obviously would have an adverse impact on the integrity of the
bidding process.  Id. 

   The protest is denied.

   Anthony H. Gamboa
General Counsel

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   [1] For reasons not relevant here, FedBizOpps, where amendment No. 1 was
posted, identified it as amendment No. 2.

   [2] Three of the five bids submitted on November 17 contained the correct
bid schedule.

   [3] Contrary to the protester's arguments, amendment No. 1 clearly
indicated that a revised bid schedule was included and we think this
identification was sufficient.