TITLE: B-309989.2, Qualicon Corporation, December 3, 2007
BNUMBER: B-309989.2
DATE: December 3, 2007
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B-309989.2, Qualicon Corporation, December 3, 2007

   Decision

   Matter of: Qualicon Corporation

   File: B-309989.2

   Date: December 3, 2007

   John R. Lockard, Esq., Vandenter Black LLP, for the protester.

   Jessica Gilden for Jessico Inc., an intervenor.

   Timothy A. Chenault, Esq., U.S. Coast Guard, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Protest alleging that agency deviated from solicitation's stated
   evaluation scheme in evaluating bids is denied where protester has not
   demonstrated a reasonable possibility that it was prejudiced by any
   deviation.

   DECISION

   Qualicon Corporation protests the selection of Jessico Inc. for award
   under invitation for bids (IFB) No. HSCG83-07-B-3WQ254, issued by the
   Department of Homeland Security, U.S. Coast Guard for replacement of pier
   services at the Coast Guard's Little Creek Station in Norfolk, Virginia.
   Qualicon contends that it submitted the lowest overall price and thus is
   entitled to award.

   We deny the protest.

   The IFB requested prices on six line items, identified as B-1 through B-6.
   The solicitation provided for award to the "low, responsive, responsible
   bidder based on the Total Aggregate Amount of Items B-1 through B-6." IFB,
   sect. M-1. Of significance to this protest, items B-3 and B-4 provided as
   follows:

     B-3. Unit Item 2: Provide all labor, material, equipment, supervision
     and transportation required to install insulated carrier and containment
     piping system with heat tracing for potable water. Attach to existing
     piping at bulkhead and existing piping on top of the pier.

     B-4. United Item 3: Provide all labor, material, equipment, supervision
     and transportation required to install insulated ASTM B88, type K copper
     carrier pipe, accessories and fittings. Install containment piping
     system with heat tracing for potable water. Attach to existing piping at
     bulkhead and existing [piping] on top of the pier.

   IFB sect. B.

   The agency opened the following bids on August 7, 2007:

   +------------------------------------------------------------------------+
   |      Bidder      |     Jessico     |    Qualicon     |    Bidder C     |
   |------------------+-----------------+-----------------+-----------------|
   |     Item B-1     |    $331,000     |    $408,821     |    $345,639     |
   |------------------+-----------------+-----------------+-----------------|
   |     Item B-2     |    $26,000      |    $16,393      |    $94,000      |
   |------------------+-----------------+-----------------+-----------------|
   |     Item B-3     |    $113,100     |    $70,599      |    $60,400      |
   |------------------+-----------------+-----------------+-----------------|
   |     Item B-4     |    $117,000     |    $78,901      |    $69,400      |
   |------------------+-----------------+-----------------+-----------------|
   |     Item B-5     |    $110,000     |    $119,880     |    $127,050     |
   |------------------+-----------------+-----------------+-----------------|
   |     Item B-6     |    $52,000      |    $44,322      |    $68,000      |
   |------------------+-----------------+-----------------+-----------------|
   |      Total       |    $749,100     |    $738,916     |    $764,489     |
   +------------------------------------------------------------------------+

   Agency Report, Tab 6.

   On August 8, Jessico protested to our Office, arguing that the project in
   question requires the performance of either the work in B-3 or the work in
   B-4, but not both, since the work to be performed under the two items is
   the same, the only difference between the two being the type of piping to
   be installed. Accordingly, Jessico maintained, the agency should include
   one or the other, but not both, in calculating the overall low bid.
   Jessico demonstrated that when the low bid was calculated by including
   either B-3 or B-4, but not both, its overall price was low.[1] The agency
   subsequently notified us that it intended to award to Jessico, whereupon
   we dismissed Jessico's protest.

   Upon learning that the agency intended to award to Jessico, Qualicon
   protested to our Office. Qualicon argues that the IFB explicitly provides
   for award to the bidder whose total aggregate price for items B-1 through
   B-6 is low, and that award to any bidder other than itself would thus be
   contrary to the clear language of the solicitation. The protester further
   argues that the bid schedule gives no indication that items B-3 and B-4
   are to be considered alternate items. In response, the agency contends
   that bidders should have recognized from the descriptions of the work to
   be accomplished under items B-3 and B-4 that the two items are alternates,
   and that the only reasonable reading of the IFB as a whole is that only
   one of the two alternates is to be considered in the computation of
   overall low price.

   We need not resolve the foregoing dispute to decide this protest because
   (1) it is clear from the record that the agency does in fact consider
   items B-3 and B-4 to be alternates and does not intend to award both, and
   (2) there is no evidence that Qualicon was prejudiced by any failure on
   the part of the agency to make clear that items B-3 and B-4 are to be
   considered alternates, with one or the other, but not both, to be
   considered in the evaluation of the overall lowest bid. In connection with
   the latter point, we will sustain a protest only where a reasonable
   possibility of prejudice is evident from the record, Lithos Restoration,
   Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 5-6, and where an
   agency fails to adhere to its stated evaluation approach in evaluating
   bids, such prejudice exists only where the record shows a reasonable
   possibility that the protester would have altered its bid to its
   competitive advantage had it known of the change. See CW Constr. Servs. &
   Materials, Inc., B-279724, July 15, 1998, 98-2 CPD para. 20 at 9; Hughes
   Missile Sys. Co., B-272418 et al., Oct. 30, 1996, 96-2 CPD para. 221 at
   14. Here, Qualicon has not alleged, and we see no basis in the record to
   conclude, that it would have altered its pricing for the various line
   items had it recognized that either item B-3 or item B-4, but not both,
   would be considered in the calculation of the overall low price.
   Accordingly, even assuming that the agency failed to adhere to its stated
   evaluation scheme in determining overall low price, we see no basis to
   sustain Qualicon's protest in light of the absence of prejudice from the
   alleged deviation from the evaluation scheme.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] With the exclusion of item B-4, Jessico's overall price of $632,100 is
   approximately $28,000 less than Qualicon's overall price of $660,015,
   whereas with the exclusion of item B-3, Jessico's overall price of
   $636,000 is approximately $32,000 less than Qualicon's overall price of
   $668,317.