TITLE: B-298831, AllWorld Language Consultants, Inc., December 14, 2006
BNUMBER: B-298831
DATE: December 14, 2006
****************************************************************
B-298831, AllWorld Language Consultants, Inc., December 14, 2006
Decision
Matter of: AllWorld Language Consultants, Inc.
File: B-298831
Date: December 14, 2006
Harvey G. Sherzer, Esq., Dickstein Shapiro LLP, for the protester.
Sheryl A. Butler, Esq., Drug Enforcement Administration, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that awardee in fixed-price sealed bid acquisition submitted
unrealistically low prices is dismissed, since question of whether a
firm's pricing is too low does not involve the responsiveness of the
firm's bid, but rather the firm's responsibility; agency, in making award,
made an affirmative determination of responsibility, which is not for
consideration under our Bid Protest Regulations except in circumstances
not alleged by protester.
2. Protest that firm's bid was nonresponsive because it included
incorrectly calculated overtime rates is denied where record shows that
miscalculation amounted to waivable minor informality.
DECISION
AllWorld Language Consultants, Inc. (ALC) protests the award of a contract
to Conduit Language Specialists under invitation for bids (IFB) No.
DEA-06-B-0001, issued by the Department of Justice, Drug Enforcement
Administration (DEA), to acquire language-related services, including
monitoring, interpretation, translation and transcription services for
DEA's San Francisco field office. ALC maintains the agency should have
rejected Conduit's bid because it included unrealistically low prices and
overtime rates calculated in a manner that was inconsistent with the terms
of the IFB.
We deny the protest.
The IFB, issued as a two-step sealed bid acquisition, contemplated the
award of an indefinite-delivery, indefinite-quantity contract for a base
year, with four 1-year options, with pricing on a fixed-price-per-hour
basis for various labor categories. Firms were required to submit
technical proposals during step one, and those firms whose proposals were
found technically acceptable would submit sealed bids during step two.
Four firms' proposals were found technically acceptable, and all four
submitted bids. The bid prices were as follows:
Conduit $36,663,500
ALC $46,392,050
SOS $47,248,830
Metropolitan $69,818,280
Agency Report (AR), exh. 8. The agency subsequently adjusted Conduit's bid
upward--to $39,174,600--in order to reflect a revised Department of Labor
Service Contract Act (SCA) wage determination, and made award to Conduit
based on this amount.
ALC asserts that the agency improperly made award to Conduit because its
bid was so low that it was unrealistic. The protester points out that the
solicitation specifically provided that unrealistically low bids could be
rejected.
We dismiss this aspect of the protest. Where, as here, fixed unit prices
are being offered to the government, a protest that a bid should be
rejected solely for being too low does not provide a legally cognizable
basis for rejection of the bid. SMC Info. Sys., B-224466, Oct. 31, 1986,
86-2 CPD para. 505 at 5-6. To the extent that an agency has concern that a
firm's pricing is too low, its recourse lies solely in finding the firm
nonresponsible. Id. In making award to Conduit, DEA determined the firm to
be responsible, see Federal Acquisition Regulation (FAR) sect.
9.105-2(a)(1), and ALC's protest based on Conduit's allegedly low price
amounts to a challenge to that affirmative determination of Conduit's
responsibility. Our Office does not consider challenges to affirmative
responsibility determinations except in limited circumstances not alleged
or present in this case. 4 C.F.R. sect. 21.5 (c) (2006).
ALC maintains that Conduit's bid should be rejected as nonresponsive for
failing to conform to the instructions in the IFB regarding its
calculation of overtime rates. In this regard, the IFB provided that, for
employees covered by the SCA, the overtime rates were to be equal to 1.5
times the base--as opposed to burdened--hourly rates used to prepare the
bid price. ALC contends that Conduit's bid violated this requirement
because it included overtime rates that were 1.5 times the firm's burdened
hourly rates.
To be responsive, a bid must represent an unequivocal offer to comply with
the IFB's material terms. FAR sect. 14.404-2. However, where a discrepancy
between what is required in the IFB and what is offered is de minimus, and
acceptance of the deviating bid will result in a contract that will meet
the government's actual requirements and will not be prejudicial to any
other bidder, the discrepancy may be waived as a minor informality. FAR
sect. 14.405; Legare Constr. Co., B-257735, Nov. 4, 1994, 94-2 CPD para.
173 at 2-4; see also M&M Servs., Inc.; EPD Enter., Inc., B-208148.3 et
al., May 23, 1983, 83-1 CPD para. 546 at 4-5.
Conduit's failure to calculate its overtime rates correctly constituted a
minor informality. Overtime rates were not included in the calculation of
the bid prices for purposes of determining the low bidder, so it is not
clear--and the protester has not explained--how any other bidder could
have been prejudiced by Conduit's miscalculation. Second, nothing in
Conduit's miscalculation alters the obligation established in its bid to
perform the exact thing called for under the IFB; Conduit is legally
obligated to perform the contract, including overtime, in exact accordance
with the terms of the solicitation.
Third, the record shows that Conduit's bid will result in the lowest price
to the government even given the miscalculation. In this regard, the
difference between Conduit's bid (as recalculated by the agency to account
for the change in the wage rate determination) and ALC's bid is
$7,217,450. The error in Conduit's calculation of its overtime rates
amounts to $1.86 per hour of overtime ($1.87 in the case of one line
item). AR, exh. 10, Letter from Conduit to Agency, June 6, 2006, attach.
1. Applying this hourly difference, even if every estimated hour under the
IFB for SCA employees were priced as an overtime hour (a virtual
impossibility, since overtime is defined in the IFB as work in excess of
40 hours per week), the additional cost of Conduit's performance would be
less than the difference between the two bids. We conclude that Conduit's
miscalculation was a waivable minor informality that did not affect the
responsiveness of the bid.
The protest is denied.
Gary L. Kepplinger
General Counsel