TITLE: B-298831, AllWorld Language Consultants, Inc., December 14, 2006
BNUMBER: B-298831
DATE: December 14, 2006
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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