B-158766, APR. 26, 1966, 45 COMP. GEN. 651

B-158766, APR. 26, 1966, 45 COMP. GEN. 651

BIDS - EVALUATION - AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC. - PROPRIETY THE METHOD OF EVALUATION EMPLOYED UNDER AN INVITATION SOLICITING A BASE BID PLUS A BID ON EACH OF FIVE ALTERNATE ITEMS AND PROVIDING FOR AWARD OF A CONTRACT ON THE BASE BID AND ANY COMBINATION OF ALTERNATE ITEMS TO THE RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, IS NOT IMPROPER, THE METHOD, CHOSEN BECAUSE OF A FUND LIMITATION, HAVING BEEN UTILIZED TO MAXIMIZE COMPETITION AMONG THE ALTERNATES, AND THE REQUIREMENTS THAT CONTRACTS FOR PUBLIC WORK BE LET TO THE LOWEST BIDDER ARE NOT VIOLATED WHEN SPECIFICATIONS ARE DRAWN FOR DIFFERENT WORK, BIDS ARE SOUGHT ON DIFFERENT BASES, AND A CHOICE IS NOT MADE BY THE CONTRACTING OFFICIALS UNTIL AFTER ALL BIDS ARE OPENED. CONTRACTS - SPECIFICATIONS - CHANGES, REVISIONS, ETC. - TIMELY NOTIFICATION THE ISSUANCE OF THE LAST OF FOUR AMENDMENTS TO AN INVITATION FOR BIDS APPROXIMATELY 2 DAYS PRIOR TO THE EXTENDED BID OPENING DATE IS NOT THE "SUFFICIENT TIME" CONTEMPLATED BY PARAGRAPH 1-2.207 (D) OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDING "NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS," AND NOTWITHSTANDING SOME BIDDERS ACKNOWLEDGED ALL THE AMENDMENTS AND RESPONDED TO THE INVITATION, A LITTLE MORE THAN 2 WORKING DAYS, OR LESS, FOR THE RECEIPT OF AN AMENDMENT, ITS CONSIDERATION, AND RETURN OF THE ACKNOWLEDGEMENT TO THE ISSUING OFFICE IS NOT THE SUFFICIENT TIME REQUIRED TO BE ACCORDED TO ALL BIDDERS BY THE REGULATION, WHICH SPECIFIC AND MANDATORY PROVIDES FOR NO EXCEPTION TO ITS DIRECTION.

TO THE COMMANDANT, UNITED STATES COAST GUARD, APRIL 26, 1966:

REFERENCE IS MADE TO LETTER FS-1 OF APRIL 15, 1966, FROM THE ACTING COMMANDANT, REPORTING ON THE PROTEST OF DINGER CONTRACTING CO. OF STATEN ISLAND, NEW YORK, UNDER INVITATION FOR BIDS IFB 08-56-66 COVERING THE CONSTRUCTION OF AN AIRCRAFT HANGAR AND OFFICE AND STORAGE LEAN-TO AT THE NEW ORLEANS AIR STATION.

THE INVITATION FOR BIDS SOLICITED A BASE BID ON THE PROJECT PLUS A BID ON EACH FIVE ALTERNATE ITEMS. THE INVITATION PROVIDED THAT THE AWARD WOULD BE MADE ON THE BASE BID AND ANY COMBINATION OF ALTERNATE ITEMS TO THAT RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

THE ORIGINAL BID OPENING TIME WAS SET FOR 2 P.M., MARCH 23, 1966. MARCH 22, 1966, AN ENVELOPE PURPORTING TO CONTAIN THE BID OF DINGER CONTRACTING CO. WAS RECEIVED. THEREAFTER, ON THE SAME DAY, A TELEGRAM WAS RECEIVED FROM THE BIDDER REQUESTING WITHDRAWAL AND RETURN OF ITS BID BECAUSE IT WAS DISSATISFIED WITH THE METHOD OF EVALUATION IN THAT IT ALLOWS THE GOVERNMENT A CHOICE OF LOW BIDDERS. HOWEVER, IN SUBSEQUENT TELEPHONE CONVERSATIONS WITH PROCUREMENT PERSONNEL ON MARCH 23 AND 24, THE BIDDER'S REPRESENTATIVE IS REPORTED TO HAVE INDICATED, AFTER AN EXPLANATION THAT THE METHOD OF EVALUATION WAS CHOSEN BECAUSE OF A FUND LIMITATION AND A DESIRE TO GET AS MUCH AS POSSIBLE ACCOMPLISHED WITHIN THE FUND LIMITATION, THAT THE COMPANY WOULD BE WILLING TO BID EXCEPT THAT IT WAS TOO LATE TO REOPEN THE ESTIMATE FILE AND TO GET A BID IN ON TIME. THAT CONNECTION, TELEGRAPHIC AMENDMENT 3 OF MARCH 22, RELEASED IN MESSAGE FORM 8:51 P.M., MODIFIED THE SPECIFICATIONS AND EXTENDED THE BID OPENING TIME TO 1 P.M., MARCH 25. ALSO, IN A CONVERSATION WITH A REPRESENTATIVE OF OUR OFFICE ON THE MORNING OF MARCH 25, THE BIDDER'S REPRESENTATIVE STATED THAT, ALTHOUGH HE HAD RECEIVED ADVICE THAT AN AMENDMENT 4 HAD BEEN ISSUED, HE HAD NOT RECEIVED THE AMENDMENT AS OF THAT TIME AND WOULD THEREFORE BE UNABLE TO MEET THE BID OPENING TIME DEADLINE. THE ADMINISTRATIVE REPORT STATES THAT THE AMENDMENT DATED MARCH 23, 1966, WAS POSTED AT THE MAIN POST OFFICE IN NEW ORLEANS AT 10:45 P.M. ON THAT DATE AND THAT THE AMENDMENT WAS AIRMAILED TO EVERYONE OUT OF TOWN. AMENDMENT 4 PROVIDED A CHANGE IN THE SPECIFICATIONS.

DINGER HAS PROTESTED ON TWO COUNTS. FIRST, IT PROTESTS AGAINST THE METHOD OF SELECTING THE LOW BIDDER. SECOND, IT PROTESTS THAT THE LAST AMENDMENTS TO THE INVITATION WERE NOT ISSUED IN SUFFICIENT TIME TO PERMIT CONSIDERATION OF THEM BEFORE THE MARCH 25 BID OPENING TIME.

IN RESPONSE TO THE FIRST POINT, THE ADMINISTRATIVE REPORT STATES THE METHOD OF EVALUATION EMPLOYED IN THE INVITATION IS UTILIZED TO MAXIMIZE COMPETITION AMONG THE ALTERNATES. IN RESPONSE TO THE SECOND POINT, IT STATES THAT THE PROTESTANT MAY HAVE A VALID ARGUMENT, BUT SUGGESTS THAT THE CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE AMENDMENTS AND THE BIDDING RESULTS REMOVE THE VALIDITY OF THAT POINT. IN THAT REGARD, IT IS STATED THAT AN ADMINISTRATIVE DECISION WAS MADE EARLY IN THE FISCAL YEAR TO SCHEDULE CONTRACT AWARDS PRIOR TO APRIL 1, 1966, FOR PROJECTS SIMILAR TO THE IMMEDIATE ONE; THAT 2 DAYS PRIOR TO BID OPENING THE CONTRACTING OFFICER LEARNED THAT CERTAIN PORTIONS OF THE SPECIFICATIONS WERE RESTRICTIVE AND, CONSEQUENTLY, ISSUED AMENDMENTS 3 AND 4 TO REMOVE THE RESTRICTION; AND THAT CONFRONTED WITH THE EARLIER ADMINISTRATIVE DETERMINATION IN RESPECT TO THE TIMELINESS OF CONTRACT AWARD, THE CONTRACTING OFFICER EXTENDED THE BID OPENING AS MANY DAYS AS HE COULD AND STILL HAVE TIME TO EVALUATE BIDS AND CONSUMMATE AN AWARD BEFORE APRIL 1. FURTHER, IT IS STATED THAT NOTWITHSTANDING THE LATE ISSUANCE OF THE AMENDMENTS, SIX BIDDERS, WHO IT IS NOTED ACKNOWLEDGED RECEIPT OF THE FOUR AMENDMENTS, RESPONDED TO THE INVITATION FOR BIDS. IT IS ADMITTED THAT IT IS PREFERABLE TO EXTEND BID OPENING TIME WHEN MODIFYING INVITATIONS, BUT BECAUSE OF THE COMPETITION WHICH WAS OBTAINED, IT IS SUGGESTED THAT THE FAILURE TO DO SO IN THIS CASE SHOULD NOT PREVENT AN AWARD FROM BEING MADE UNDER THE INVITATION. IT IS REPORTED THAT AWARD ACTION HAS BEEN SUSPENDED PENDING OUR DECISION.

OUR OFFICE HAS CONSIDERED THE COAST GUARD METHOD OF EVALUATION PROVIDED IN THIS INVITATION IN CONNECTION WITH ANOTHER PROTEST AGAINST THIS MANNER OF EVALUATION EMPLOYED IN AN EARLIER COAST GUARD INVITATION. IN THAT CASE, LIKE THIS ONE, THE PROCEDURE WAS PROTESTED ON THE BASIS THAT IT PERMITTED SELECTION OF THE LOW BIDDER TO BE CONTROLLED BY MANIPULATING THE SELECTION OF ALTERNATES AFTER THE OPENING OF BIDS. IN THAT CASE, B- 148333, OUR OFFICE RESPONDED TO THE PROTEST IN DECISION OF APRIL 9, 1962, AS FOLLOWS:

* * * SUCH AN ELECTION BY THE CONTRACTING AGENCY IS NOT IMPROPER. REQUIREMENTS THAT CONTRACTS FOR PUBLIC WORK BE LET TO THE LOWEST BIDDER ARE NOT VIOLATED WHEN SPECIFICATIONS ARE DRAWN FOR DIFFERENT WORK, BIDS ARE SOUGHT ON DIFFERENT BASES, AND A CHOICE IS NOT MADE BY THE CONTRACTING OFFICIALS UNTIL AFTER ALL THE BIDS ARE OPENED. 43 AM.JUR., PUBLIC WORKS AND CONTRACTS, SEC. 37; 10 MCQUILLIN, MUNICIPAL CORPORATIONS SEC. 29.55 (3RD ED.); COHEN, PUBLIC CONSTRUCTION CONTRACTS AND THE LAW, SEC. 2.14.

ALSO, IN ACCORD, SEE B-157227, AUGUST 18, 1965.

HOWEVER, WHILE IN VIEW OF OUR POSITION IN THE CITED DECISIONS, OUR OFFICE WOULD DENY DINGER'S PROTEST ON THE FIRST COUNT, WE ARE CONSTRAINED TO SUSTAIN THE PROTEST ON THE SECOND COUNT. THE BASIS FOR SUSTAINING THE PROTEST IS THAT THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDE IN SECTION 1-2.207 (D) THAT "NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS.' WHILE IT MAY BE THAT SIX BIDDERS WERE ABLE TO RECEIVE AND ACKNOWLEDGE ALL FOUR AMENDMENTS PRIOR TO BID OPENING, IT IS OBSERVED THAT THEY WERE NOT LOCATED AS FAR FROM THE BID OPENING SITE AS WAS THE PROTESTANT. IN ANY EVENT IT IS NOT CONSIDERED SIGNIFICANT THAT SOME OF THE PROSPECTIVE BIDDERS HAD AMPLE TIME TO ACKNOWLEDGE THE AMENDMENTS SINCE THE LANGUAGE IN FPR IS SPECIFIC THAT AMENDMENTS ARE TO BE ISSUED IN SUFFICIENT TIME THAT ,ALL" PROSPECTIVE BIDDERS WILL HAVE SUFFICIENT TIME TO CONSIDER THE AMENDMENTS IN THE PREPARATION OR MODIFICATION OF THEIR BIDS. THE ISSUANCE OF AMENDMENTS PROVIDING A LITTLE MORE THAN 2 WORKING DAYS, OR LESS, FOR THE RECEIPT IN A PLACE MUCH REMOVED FROM THE ISSUING OFFICE, AND FOR CONSIDERATION IN THAT PLACE AND FOR RETURN OF AN ACKNOWLEDGEMENT IN TIME BEFORE BID OPENING, IS NOT THE SUFFICIENT TIME REQUIRED TO BE ACCORDED TO ALL PROSPECTIVE BIDDERS BY FPR. THE REPORT OF APRIL 15 SEEMS PREPARED TO ADMIT THIS, BUT SUGGESTS THAT IN VIEW OF THE APRIL 1 DEADLINE TOWARD WHICH THE CONTRACTING OFFICE WAS WORKING AND THE NUMBER OF BIDS RECEIVED THE SITUATION SHOULD BE TREATED AS EXTENUATING. HOWEVER, THE FPR IS SPECIFIC AND MANDATORY THAT NO AWARD SHALL BE MADE WHERE SUFFICIENT TIME WAS NOT PROVIDED AND NO EXCEPTION IS PROVIDED THEREIN FOR THE CIRCUMSTANCES RELATED.

ACCORDINGLY, NO AWARD SHOULD BE MADE UNDER THE SUBJECT INVITATION.