On or before the September 9 closing date, bids were submitted by various offerors, including [CI Filing Systems, LLC] CFS and its sister corporation, IFS Filing Systems LLC (IFS). Thereafter, GPO determined that CFS’s affiliate was the low bidder and, on September 16, issued a purchase order to IFS.  Protest, exh. E, Timeline for Jacket 386-060, at 5.  On October 8, IFS delivered pre‑production samples of the folders that included fasteners which IFS described as “Permclip bonded fastener[s].” Protest, exh. E, Letter from HoganWillig (Counsel for both IFS and CFS) to GPO Contracting Officer, Oct. 15, 2014, at 1.

(sections deleted)

On December 10, the contracting officer issued a final decision terminating IFS’s contract for default. Agency Report (AR), Feb. 4, 2015, at 2; Protester’s Comments on Agency Report, Tab 1, Request for Inspector General Investigation, at 5.

On December 11, the contracting officer determined that CFS was the next low bidder and, accordingly, sent CFS an email seeking confirmation that the bid it previously submitted was still valid. AR, Tab 3, Email from GPO Contracting Officer to CFS’s Chief Executive Officer (CEO), Dec. 11, 2014. Additionally, because the contracting officer noted that CFS’s bid was nearly identical to IFS’s bid, he also asked CFS: “[C]an you give me information about the fastener that will be used in the folder?” Id.

(sections deleted)

On December 30, the contracting officer advised CFS that, based on CFS’s unwillingness to substantively respond to the contracting officer’s requests, along with the fact that CFS’s bid was nearly identical to the bid submitted by IFS (which had led to termination for default of IFS’s contract), CFS’s bid was considered nonresponsive to the solicitation requirements regarding embedded fasteners. AR, Tab 5, Letter from GPO Contracting Officer to CFS CEO, Dec. 30, 2014. This protest followed.

(sections deleted)

As discussed above, the contracting officer had inspected the pre-production samples of the Permclip fasteners that were submitted by CFS’s sister corporation before reaching a conclusion that the fasteners were not embedded in the file folders. Further, the agency declined to accept a proposed modification of the contract that would have changed the requirements in this regard, opting instead to terminate the prior contract for non-compliance with the solicitation requirements. Finally, the manufacturer of the fastener, Permclip, used the term “adhesive” in describing the fasteners on its website. See Protest, exh. E, Letter from HoganWillig to GPO, Nov. 10, 2014, at 5. The fact that the description of the fasteners was subsequently altered to reflect language more consistent with the terms of the solicitation does not provide a basis for concluding that the contracting officer’s determination was unreasonable. In short, the record reasonably supports the agency’s determination that CFS’s bid to provide Permclip fasteners failed to comply with the solicitation requirements for embedded fasteners--just as IFS’s bid for the same product had done--and, accordingly, was nonresponsive. Neither the fact that CFS disagrees, nor the additional information and arguments that CFS has provided, persuade this Office that the agency unreasonably determined that the Permclip fasteners fail to comply with the solicitation requirement for embedded fasteners. See, e.g., AT&T Corp., B-299542.3, B-299542.4, Nov. 16, 2007, 2008 CPD ¶ 65 at 19.  (CI Filing Systems, LLC B-411012: Apr 17, 2015).  (pdf) 

Bidders were informed that performance of the work must begin within 10 calendar days and be completed within 245 calendar days after receiving notice to proceed. IFB at 1. The IFB also stated that if funding was available at the time of award the agency may make award for both Schedule A and Schedule B at that time; but that if funding for Schedule B was received after award, the agency had the right to exercise its option for the Schedule B work not later than 120 calendar days after the notice to proceed for Schedule A. Bid Schedule Instructions at 1. In this regard, the IFB provided that if Schedule B was not part of the original contract award, but was exercised later, overall contract performance must still be completed within 245 calendar days of notice to proceed. IFB at B-8.

(sections deleted)

To be responsive, a bid must show on its face at the time of bid opening that it is an unqualified offer to comply with all material requirements of the solicitation, and that the bidder intends to be bound by the government’s terms as set forth in the solicitation. Sundt Corp., B-274203, Nov. 5, 1996, 96-2 CPD ¶ 171 at 2. The performance schedule is a material requirement. Northwest Pesticide Enterps., Inc., B-235982, Sept. 28, 1989, 89-2 CPD ¶ 284 at 2. A bid, which takes exception to a material IFB requirement or is ambiguous with respect to whether the bid represents an offer to comply with a material requirement, may not be changed or clarified after bid opening and must be rejected as nonresponsive. Marco Equip., Inc.; Scientific Supply Co., B-241329, B-241329.2, Jan. 31, 1991, 91-1 CPD ¶ 107 at 3. This is to ensure that all bidders compete on an equal basis, with no advantage being given to any bidder over another, and thus to ensure the integrity of the competitive bidding system. Id.

Here, the record shows that, at best, the protester’s bid was ambiguous with respect to whether Valley Quarries had unequivocally promised to complete contract performance within the time required. Although it is true that the calculation of contract administrative costs was for evaluation purposes only, this calculation was to be based upon the bidders’ estimated number of days to complete the contract work. By specifying 280 calendars days for this calculation, Valley Quarries called into question its commitment to perform the contract work within 245 calendar days as required. In this regard, the Bid Summary stated, directly above the space provided for the bidders’ estimated calendar days for calculating the contract administrative costs, that “[t]he total calendar days bid to complete all contract work must be greater than or equal to (≥) 120 and less than or equal to (≤) 245.” IFB at B-8 (emphasis in original). Although Valley Quarries argues that it intends to perform the contract work within 245 calendar days, it is well settled that when determining the responsiveness of a bid, the controlling factor is not whether the bidder intends to be bound, but whether this intention is apparent from the bid as submitted. Balongas, S.A., B-215153, July 23, 1984, 84-2 CPD ¶ 86 at 2.  (Valley Quarries, Inc., B-409859: Aug 13, 2014)  (pdf)
 

HPC argues that the bid submitted by BES Design/Build, LLC was nonresponsive, and should have been rejected because it did not provide a price for both line item 1 and the alternate line item 2. Protest at 10. The VA argues that it correctly concluded that the bid from BES Design/Build, LLC was not defective because the failure to submit a price for an alternative line item that the agency does not award does not render a bid nonresponsive. AR at 5.

This Office recently considered essentially this same situation, and held that a bidder’s failure to bid on an alternate item that was not selected for award does not, in itself, render the bid nonresponsive. Povolny Group, B-407570, Jan. 9, 2013, 2013 CPD ¶ 26 at 3. Where a solicitation includes a base bid and alternatives, bids must be evaluated on the basis of work actually awarded. See, e.g., Niemela Constr. Co., B-237616, Feb. 7, 1990, 90-1 CPD ¶ 161 at 2. Failure of a bidder to offer a price for all alternates will constitute a basis for rejection only if evaluation and award includes the items not bid. This is true even where the IFB states that failure to bid on every item will cause rejection of the bid as nonresponsive. Haskins Co., B-227898, Sept. 21, 1987, 87-2 CPD ¶ 285 at 2.

Here, the bid submitted by BES Design/Build, LLC unequivocally offered to perform the base requirement, which is what the VA actually awarded.[2] Accordingly the bid was responsive, and provided a proper basis for the award of a contract.  (Hamilton Pacific Chamberlain, LLC, B-409208.2: Apr 3, 2014)  (pdf)

C&D argues that RUSH’s bid should have been rejected because the discrepancies in its bid schedule represent a non-responsive bid. Protest at 2. More specifically, C&D argues that RUSH’s original bid did not commit the firm to complying with Note 9 in performing the east wall fender installation. Protester’s Comments at 2; Protester Response to Intervenor’s Reply at 2. In response to an inquiry from our Office to all parties about the significance of both pages of RUSH’s schedule referring to the west wall base requirement, C&D argues that this fact also rendered RUSH’s bid ambiguous and unacceptable. Protester’s Response to GAO Questions, Feb. 4, 2014, at 2-3.

The Corps and RUSH argue that the agency properly waived the discrepancies in RUSH’s bid schedule, both because the bid did not reflect material variations from the IFB requirement, and because despite the discrepancies in the second page of the bid schedule, the page included the appropriate lines and quantities, and thus displayed RUSH’s intention to offer a bid for each of the option contract line items. Intervenor’s Reply Brief at 2; Intervenor’s Response to GAO Questions, Feb. 4, 2014, at 2-3; Agency’s Response to GAO Questions, Feb. 4, 2014, at 2-4.

As explained below, we agree with C&D that RUSH’s bid schedule differed materially from the terms of the IFB. As a result, the discrepancies in RUSH’s bid schedule could not be waived; rather, the contracting officer should have rejected RUSH’s bid as nonresponsive.

A bid that fails to include a price for every item required by the IFB generally must be rejected as nonresponsive. HH&K Builders, B-232140, Oct. 20, 1988, 88-2 CPD ¶ 379 at 2, recon. denied, B-232140.2, Nov. 30, 1988, 88-2 CPD ¶ 537. This includes a bidder’s failure to provide a responsive bid for optional contract line items, which thus renders the entire bid nonresponsive. Massillon Constr. & Supply, Inc., B‑407931, Mar. 28, 2013, 2013 CPD ¶ 85 at 3. This rule reflects the legal principle that a bidder who has failed to submit a price for an item generally cannot be said to be obligated to furnish that item. United Food Servs., B‑218228.3, Dec. 30, 1985, 85‑2 CPD ¶ 727 at 3. Therefore, where a page in a bidder’s schedule does not clearly indicate that the prices apply to an option that the IFB requires to be priced, the bid is ambiguous and thus, nonresponsive. Thompson Metal Fab, Inc., B‑293647, May 4, 2004, 2004 CPD ¶ 109 at 3.

The discrepancies in RUSH’s bid here were not a mere minor informality. Both pages of RUSH’s bid schedule identified the scope of work being bid as the west wall; neither identified any prices as applying to the east wall. The second page of the schedule, which should have contained prices for the east wall work identified Note 9 (the west wall fender installation note) as applicable, rather than Note 6 (which, as revised by Amendment 5, required the reuse of fender material). As a result, at the time of bid opening, RUSH had not made a firm commitment to perform the east wall scope of work at specific line item prices.

Although the contracting officer identified misnumbering on the second page of RUSH’s bid schedule, and expressed her view that such a discrepancy could be waived as a minor informality, she did not identify the fact that RUSH’s bid also referred only to the west wall base requirement, and referenced only Note 9 for fender installation. Since these discrepancies reflected material differences in the work and the manner of its performance, they could not be waived--even if the contracting officer had identified them. In short, the contracting officer improperly allowed RUSH to correct its nonresponsive bid.

The protest is sustained.

RECOMMENDATION

We recommend that the Corps revoke the waiver of the discrepancies in RUSH’s bid, reject RUSH’s bid as nonresponsive, and terminate the contract for the convenience of the government. We recommend that the Corps identify the next lowest-priced responsive responsible bidder, and make award to that firm, if otherwise proper. We also recommend that C&D be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees. Bid Protest Regulations, 4 C.F.R. § 21.8(d)(1) (2013). The protester should submit its certified claim for such costs, detailing the time expended and the costs incurred, directly to the contracting agency within 60 days after receipt of this decision.  (C&D Construction, Inc., B-408930.2: Feb 14, 2014)  (pdf)

While the IFB required bidders to submit prices for each CLIN in order to be eligible for award, IFB at 1, MCSI failed to submit a separate, lump sum price for the Schedule D CLIN. MCSI, however, asserts that the agency nevertheless should have found its bid responsive because it acknowledged IFB amend. 0001 and included the price for the Schedule D work as part of the testing CLIN under Schedule A.

We disagree. Rather, we find that the agency properly determined MCSI’s bid to be nonresponsive because of the failure to submit a separate bid for the optional Schedule D work. To be responsive, a bid must constitute an unequivocal offer to perform the exact thing called for in the solicitation, such that acceptance of the bid will bind the contractor in accordance with the material terms and conditions of the solicitation. Custom Envtl. Serv., Inc., B-234774, May 24, 1989, 89-1 CPD ¶ 501 at 3. While MCSI acknowledged the amendment providing for Schedule D, the mere acknowledgement of an amendment, without a specific price, is not sufficient to constitute a bid for the additional quantity of work since doubt exists as to the amount of the bid and the bidder’s obligation to perform the increased work. See J.D. Bertolini Indus., Ltd., B-231598, Sept. 14, 1988, 88-2 CPD ¶ 245 at 3; Larry’s Inc., B-230822, June 22, 1988, 88-1 CPD ¶ 599 at 2. Further, MCSI’s post-bid opening explanation that its price was included within another CLIN under Schedule A is unavailing since nothing in MCSI’s bid established the likely price for Schedule D. See, e.g., United Food Servs., Inc., B-218228.2, Dec. 30, 1985, 85-2 CPD ¶ 727 at 3 (correction of omitted price may be allowed where there is a consistent pattern of pricing within the bid itself establishing both the error and the intended price). In this regard, each testing CLIN called for specific work to be accomplished under the relevant Schedules A, C, and D. IFB, as amended, § 154 at J-20. MCSI’s mere inclusion of a total price under Schedule A, with the annotation “Amendment 001,” while allegedly covering both Schedules A and D testing work, provided neither an assurance that the firm had agreed to perform the specific Schedule D requirements nor any indication of the cost of that work. Furthermore, MCSI’s non-responsive bid cannot be made responsive by explanations after bid opening since doing so would effectively allow the bidder to elect whether to accept or reject the additional work. Larry’s Inc., supra.

MCSI nevertheless asserts that its omitted price is a minor informality or immaterial defect, and thus that the agency should waive the omission or allow its correction. Federal Acquisition Regulation § 14.405; W.B. Constr. and Sons, Inc., B-405818, B-405818.2, Jan. 4, 2012, 2012 CPD ¶ 17 at 4. A defect or variation is immaterial if the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the services being acquired. Id. Thus, a contracting agency may waive the failure to bid on an item as a minor informality if the item for which the price is omitted is divisible from the solicitation’s overall requirements, de minimis as to total cost, and would not affect the competitive standing of the bidders. W.B. Constr. and Sons, Inc., supra; E. H. Morrill Co., B-214556, May 3, 1984, 84-1 CPD ¶ 508 at 3.

Here, the record shows that one of the prerequisites for waiver of the omission is not met inasmuch as the Schedule D work is not logically divisible. Although priced as an option, the agency considers the Schedule D intelligent compaction work to be an essential, integral part of the overall contract, intended to accelerate project delivery and improve pavement performance, and which will be ordered as soon as funding becomes available. Supplemental Agency Report (SAR) at 2. The agency explains that, since the intelligent compaction work involves sampling, testing, and compaction support activities to be performed on a portion of the road in conjunction with the asphalt laying work, it would not be practical to have two contractors--one performing intelligent compaction and the other laying asphalt--separately accomplish the required work. Second SAR at 1-2; see E. H. Morrill Co., supra (need to have contractor responsible for additional (omitted) excavation work which represented material part of overall contract requirements); cf. Leslie & Elliott Co., B-216676, Feb. 19, 1985, 85-1 CPD ¶ 212 at 3; aff’d Ryan Elec. Co.--Recon., B-218246.2, Apr. 1, 1985, 85-1 CPD ¶ 366 (unpriced, potential work considered divisible where no need for same contractor to perform it as well as remaining work). For example, according to the agency, if the asphalt was not properly compacted, the paving contractor could be required to remove the asphalt it put down and would not be paid until the problem was corrected. This in turn could potentially lead to claims against the agency by the paving contractor. Second SAR at 1-2.

While MCSI asserts that the agency could easily contract for the Schedule D intelligent compaction testing with the paving contractor used by the protester (and apparently other bidders), the government would not be required to do so. Thus, we see no basis to question the agency’s determination that the Schedule D work is not, as a practical matter, divisible from the other aspects of the contract. Accordingly, MCSI’s failure to include a price for Schedule D cannot be waived and the agency thus properly rejected the firm’s bid as nonresponsive.  (Massillon Construction and Supply, Inc., B-407931, Mar 28, 2013)  (pdf)
 

Povolny complains that RPreusser’s bid is nonresponsive, because the awardee did not provide a bid price for the alternate bid item.

Where a solicitation includes a base bid and alternatives, bids must be evaluated on the basis of work actually awarded. Niemela Constr. Co., B-237616, Feb. 7, 1990, 90-1 CPD ¶ 161 at 2; The Haskins Co., B-227898, Sept. 21, 1987, 87-2 CPD ¶ 285 at 2; recon. denied, Cree Constr. Co., Inc., B-227898.3, Oct. 26, 1987, 87-2 CPD ¶ 394 at 2. As a result, we have held that the failure of a bidder to provide a price for all alternates constitutes no basis, sufficient in itself, to require rejection of the bid. Casson Constr. Co., Inc., B-198746, Oct. 24, 1980, 80-2 CPD ¶ 318 at 5. Failure of a bidder to offer a price for all alternates will constitute a basis for rejection only if evaluation and award includes the items not bid, and this is true even where the IFB states that failure to bid on every item will cause rejection of the bid as nonresponsive. The Haskins Co., supra.

Since RPreusser unequivocally offered to perform the work actually awarded, i.e., the basic bid item, its bid is responsive and properly may be considered for award. Casson Constr. Co., Inc., supra.

The protest is denied.  (The Povolny Group, B-407570, Jan 9, 2013)  (pdf)

As an initial matter, 4Granite maintains that the references to the commercial items clauses in its bid was an “inadvertent error” and, as a consequence, they should not have been construed as imposing additional conditions or obligations in conflict with the terms established by the solicitation. Protest at 2. 4Granite also argues that the document at issue was not required by the solicitation, the contracting officer could have overlooked its contents, and that it should have been permitted to delete the references to the clauses set forth in the document because any differences between the referenced clauses and the solicitation’s clauses are immaterial. For the reasons discussed below, we find that the agency properly rejected 4Granite’s bid as nonresponsive.

To be responsive, and considered for award, a bid must contain an unequivocal offer to perform, without exception, the exact thing called for in the solicitation so that, upon acceptance, the contractor will be bound to perform in accordance with all of the solicitation’s material terms and conditions. Oregon Electric Constr., Inc. dba Integrated Systems Group, B-294279, Sept. 27, 2004, 2004 CPD ¶ 188 at 2. If, in its bid, a bidder imposes conditions or modifies a material solicitation requirement, limits its liability to the government, or limits the rights of the government under a resulting contract, then the bid must be rejected as nonresponsive. Id.; FAR § 14.404-2(d). A bidder’s intention to be bound by the solicitation requirements must be determined from the bid itself at the time of bid opening. See Franklin Instrument Co., Inc., B-204311, Feb. 8, 1982, 82-1 CPD ¶ 105 at 2.

Here, the contracting officer could not overlook the document 4Granite included in its bid. Any extraneous documents submitted with a bid must be considered a part of the bid for purposes of determining the bid’s responsiveness. Washington Printing Supplies Inc., B-227048, July 10, 1987, 87-2 CPD ¶ 34 at 3. The face of the document at issue indicates that 4Granite understood the commercial items clauses as applying to this solicitation. Specifically, 4Granite represented that the clause at FAR § 52.212-3, Representations and Certification-Commercial Items, was “applicable to this solicitation,” and referenced the clause at FAR § 52.212-1, Instructions to Offerors-Commercial Items, when indicating it was in complete agreement with all terms and conditions included in this solicitation. These statements, coupled with 4Granite’s subsequent indication that it had “read and understood” two particular commercial items clauses and “all other” FAR and DFAR clauses “incorporated by reference in this solicitation” rendered its bid, at best, ambiguous as to whether it was agreeing to the terms and conditions of the commercial items clauses or to the terms and conditions set forth in the solicitation.

Moreover, we agree with the agency that the ambiguity created by 4Granite’s references to the commercial items clauses concerned material terms of the firm’s bid since they implicate matters such as the contractual terms of the warranty. See Bailey Controls Co.; The Foxboro Co., B-256189, B-256189.2, May 23, 1994, 94-1 CPD ¶ 320 at 4 (establishing that warranty provisions are material terms of a contract since they affect the legal obligations of the contracting parties). In this regard, the reference in 4Granite’s bid to FAR § 52.212-4, Contract Terms and Conditions--Commercial Items, invoked the standard commercial item warranty, which merely provides that a contractor “warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.” In contrast, the warranty provision set forth in the solicitation, FAR § 52.246-21, Warranty of Construction, establishes fundamentally different legal obligations concerning the length of the warranty, the contractor’s obligation to remedy defects and at whose expense, the contractor’s obligation to enforce warranties for the benefit of the government, and the government’s rights in the event of a contractor’s failure to fulfill its obligations. It is well settled that where a bidder introduces ambiguity in its bid regarding material terms, such as the case here, the bid must be rejected as nonresponsive. Washington Printing Supplies Inc., supra.

Although 4Granite now maintains that it unintentionally included this document, and meant to agree to all the terms and conditions in the solicitation, no such statement of this intent was attached to the bid at the time of its submission. This document and its contents were submitted along with the bid and must be considered part of the bid, as noted above, for purposes of determining responsiveness. Since only material available at bid opening may be considered in making a responsiveness determination, 4Granite’s protest statements concerning its intent cannot be considered in determining the responsiveness of its bid. HBH, Inc., B-225126, Feb. 26, 1987, 87-1 CPD ¶ 222 at 2. Bidders bear the primary responsibility for properly preparing bid documents in such a fashion that the contracting agency can accept the bid with full confidence that an enforceable contract, conforming to all the requirements of the IFB, will result. See The Scotsman Group, Inc., B-245634, Jan. 13, 1992, 92-1 CPD ¶ 57 at 3. The protester failed to do so here.  (4Granite Inc., B-406459, Apr 2, 2012) (pdf)

VCG protests the VA's rejection of its bid and alternate bid. Specifically, VCG argues that its bid for the Trane chiller met the requirements and specifications of the IFB. Comments at 1-2. In the alternative, VCG argues that the VA should have accepted its alternate bid for the York chiller as the low bid for the project. Protest at 2.

The agency argues that the IFB called for a specific "brand name refrigerant" to be used, and VCG's bid "failed to meet the criteria" in the IFB. Supp. AR at 1. Additionally, the agency asserts that the protester's bid and alternate bid "created two quoted prices" which resulted in the protester's bid being "contradictory" and nonresponsive. Id. at 1, 5.

To be responsive, a bid must show on its face at the time of bid opening that it is an unqualified offer to comply with all material requirements of the solicitation, and that the bidder intends to be bound by the government's terms as set forth in the solicitation. Sundt Corp., B-274203, Nov. 5, 1996, 96-2 CPD ¶ 171 at 2. A bidder's intention must be determined at the time of bid opening from all the bid documents, which include any extraneous documents submitted with the bid, since such materials are part of the bid for purposes of determining responsiveness. M&G Servs., Inc., B-244531, June 27, 1991, 91-1 CPD ¶ 612 at 1-2.

As an initial matter, we first address whether the agency should have considered VCG's alternate bid for the York chiller. We conclude that it was reasonable for the VA to reject the alternate bid. In this regard, the IFB included a FAR clause stating that the agency would not consider alternate bids unless the IFB authorized their submission. AR, Tab 17, IFB at 12; see FAR § 52.214-18. The letter that VCG submitted with its bid package clearly indicated the firm was submitting an "alternate bid proposal" of the York model chiller at a higher price. Protest, encl. 2, VCG Bid Letter, at 1. Since the IFB here did not authorize the submission of alternate bids, the VA's decision to reject VCG's alternate bid for the York chiller is unobjectionable.

Next, we turn to VCG's contention that the VA improperly rejected its bid for the Trane chiller and the R-123 refrigerant as not meeting the specifications in the IFB. The record is remarkably absent of any rationale to support the agency's arguments in this regard. The contemporaneous record contends vaguely that cut sheets for the Trane chiller were "questionable" and that the R-123 refrigerant associated with the Trane chiller did not meet the specifications of the IFB, without any explanation of what was questionable or what specifications were not met. During the development of the protest, we sought explanation from the agency, and the agency merely repeated that the bid was "lacking and thus, nonresponsive" and "failed to meet the criteria established by the agency in its IFB." Contracting Officer's Statement at 2; Supp. AR at 1. Despite multiple opportunities, the agency has not explained why VCG's proposal failed to meet the IFB's requirements, which of the 384 pages of specifications and drawings were not met, or what in the 14 pages of documentation describing the chiller model VCG included in its bid was questionable. Without support for its conclusions, we cannot find that the agency acted reasonably in rejecting VCG's bid.

Moreover, to the extent the agency argues that the IFB's specifications required a particular brand name chiller or refrigerant, the record does not support that assertion. The specifications identified three manufacturers that offered products that "may be" used in the project, but the IFB did not restrict bidders to these brands exclusively. See AR, Tab 6, Specifications, at 23 64 00-4. Similarly, the IFB refers both to the use of HFC-134a refrigerant and R-123 refrigerant, and it did not restrict bidders to a particular type. We therefore find the agency's rejection of VCG's bid on the basis that the bid was not for a specified chiller and refrigerant to be inconsistent with the solicitation.

We recommend, consistent with this decision, that the VA reconsider VCG's bid for the Trane chiller to determine if it satisfies the specifications of the IFB. We further recommend that the agency reimburse the protester the costs of filing and pursuing its protest, including reasonable attorneys' fees. 4 C.F.R. § 21.8(d)(1) (2012). The protester's certified claim for costs, detailing the time spent and the cost incurred, must be filed to the agency within 60 days after receiving this decision. 4 C.F.R. § 21.8(f)(1).

The protest is sustained.  (Veterans Contracting Group, Inc., B-405940, Jan 12, 2012)  (pdf)

ATR does not dispute that it failed to provide a price breakdown for providing mail services to Bryan Tower. However, ATR argues, citing its letter that stated it would provide mail service to Bryan Tower, that its bid nonetheless was responsive because its bid committed it to comply with all the terms and conditions of the solicitation.

To be considered for award, a bid must comply in all material respects with the IFB and should be filled out, executed, and submitted in accordance with the instructions on the invitation. Federal Acquisition Regulation (FAR) sect. 14.301(a), (d). A bidder can bind itself to the contents of some amendments merely by acknowledging receipt of the amendments; however, when a bidder, despite acknowledging an amendment, otherwise creates doubt as to its commitment to perform pursuant to the amendment, its bid must be rejected. Lamb Eng'g & Constr. Co., B-261240, Aug. 25, 1995, 95-2 CPD para. 87 at 3. If a bidder uses its own bid form or a letter to submit a bid, the bid may be considered if (1) the bidder accepts all the terms and conditions of the invitation and (2) award on the bid would result in a binding contract with terms and conditions that do not vary from the terms and conditions of the invitation. FAR sect. 14.301(d).

The record shows that ATR's bid did not conform to the IFB in two areas. First, although ATR acknowledged amendment 1, the omission of the pricing for Bryan Tower as provided in the revised bid schedule created doubt as to whether ATR agreed to all of the terms of amendment 1. ATR's bid did not identify a price for providing mail and messenger service to Bryan Tower in either the bid schedule or in the bid response letter. Also, although ATR indicated in its bid response letter its intention to provide mail services to Bryan Tower--e.g., on the first two pages, the Mail Point Schedules, and the list of Mailroom Pick-Up and Mail Drop Off Spots--it failed to indicate that it would comply with all of the terms and conditions of the amended IFB. Specifically, the protester's bid did not commit to begin the mail run for Bryan Tower at 1:00 p.m., as required by amendment 1. Instead, the protester stated that mail runs would begin at 10 a.m. and 2 p.m., which was the requirement under the initial IFB for the other locations. IFB amend. 1, at 28; AR, Tab 8, ATR Bid Response Letter, at 12.

ATR argues that its failure to include a price breakdown for mail service for Bryan Tower is a minor informality that the agency should allow it the protester to correct because ATR's price for this mail service would be only $5,444.40, or 0.0063 percent of its bid. Protest at 2.

A minor informality is one that is merely a matter of form and not of substance. FAR sect. 14.405. A contracting officer should waive a defect in a bid as a minor informality if the defect is immaterial and if waiver will not be prejudicial to other bidders. TECOM, Inc., B-236929, B-236929.2, May 11, 1990, 90-1 CPD para. 463 at 3. A defect is immaterial if the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the services being acquired. Id. However, where it is apparent that the requirement is material for reasons other than the effect on price it is not necessary to determine whether or not the price impact is negligible. MTC Indus. & Research Carmiel, Ltd., B-227163, Aug. 18, 1987, 87-2 CPD para. 174 at 5.

Here, we find that the requirement for mail service for Bryan Tower is not immaterial. As noted above, the IFB clearly identified the accuracy and timeliness of mail pickup and delivery at each location as being of primary importance--thus denoting a material requirement of the contract that cannot be waived. ATR's bid, however, did not commit to the pickup schedule required for Bryan Tower under amendment 1.

ATR also argues, in the alternative, that its bid should have been understood to have included a fully -priced commitment to provide mail services to Bryan Tower. In this regard, the protester argues that the original solicitation required mail service for two federal buildings, as well as a third "off-site" location for the Department of Education. Protester's Comments at 1. Thus, the protester contends, the initial IFB already required mail services to a third site, and the protester's failure to provide pricing for the third sub-CLIN, as required in amendment 1, did not affect the requirement for the contractor to provide mail services for three locations. We disagree. The initial IFB clearly referred to two federal buildings, one of which, the Earle Cabell Federal Building, contained the Department of Education facility; the initial IFB did not state that there was a third "off-site" location. The requirement for mail service to a third location, Bryan Tower, was first included in amendment 1--which, as discussed above, required offerors to provide separate sub-CLIN pricing, and which the protester did not address in its bid.

Furthermore, to the extent that ATR argues that its bid in fact included pricing for mail and messenger service for Bryan Tower, we disagree. A bidder's intention must be determined from the face of the bid itself and evidence submitted after opening to show a bidder's intent may not be considered. Newfield Constr., Inc., B-286912, Feb. 6, 2001, 2001 CPD para. 21 at 4. A nonresponsive bid cannot be made responsive by explanations after bid opening. J. D. Bertolini Indus., Ltd., B-231598, Sept. 14, 1988, 88-2 CPD para. 245 at 3.

In sum, ATR's failure to include prices for the sub-CLINs to provide mail service to Bryan Tower as required by amendment 1, and its failure to commit to the required schedule, created doubt as to ATR's intention to fulfill all of the terms and conditions of the amended IFB.  (ATR Logistic Company LLC, B-402606, June 1, 2010)  (pdf)

Blackmon's status as an SDVOSB concern is not in dispute here. The issue before our Office is whether Blackmon's bid was nonresponsive because the firm's ORCA record had expired at the time of bid opening. Veterans contends that Blackmon's bid is nonresponsive and could not be made responsive after bid opening when Blackmon updated its ORCA records.

A responsive bid is one that, if accepted by the government as submitted, will obligate the contractor to perform the exact thing called for in the solicitation. See FAR sect. 14.301; Propper Mfg. Co., Inc.; Columbia Diagnostics, Inc., B‑233321, B‑233321.2, Jan. 23, 1989, 89-1 CPD para. 58. Responsiveness is determined at the time of bid opening from the face of the bid documents. Unless something on the face of the bid, or specifically a part of it, limits, reduces or modifies the bidder's obligation to perform in accordance with the terms of the solicitation, the bid is responsive. Cal-Tex Lumber Co., Inc., B-277705, Sept. 24, 1997, 97-2 CPD para. 87 at 3.

With respect to certificates and representations, we examine the certificate or representation to determine whether it concerns the bidder's responsiveness (that is, its commitment to provide the required services) or its responsibility. Generally, we have found that the failure of a bidder to include completed standard representations and certifications with its bid does not render the bid nonresponsive because it does not affect the bidder's material obligations. See Charter Envtl., Inc., B-297219, Dec. 5, 2005, 2005 CPD para. 213 at 4; see also Nomura Enter. Inc.--Recon., B-244993.2, B‑245521.2, Oct. 9, 1991, 91-2 CPD para. 322 at 3.

Here, none of the applicable representations and certifications in Blackmon's ORCA record reduces or modifies Blackmon's obligation to perform in accordance with the IFB requirements. In this regard, we have found that the failure of a bidder under a small business set-aside to provide a properly executed certification of small business status with its bid is normally waivable and the appropriate representation may be made after bid opening because it pertains only to the bidder's status and eligibility for award, not to the firm's commitment to provide the required service.

Cal-Tex Lumber Co., Inc., supra, at 3 n.1. Accordingly, we find that Blackmon's bid was responsive.

The protest is denied.  (Veterans Construction of South Carolina, LLC, B-401723.2, January 21, 2010)  (pdf)

The failure to include with a bid completed standard representations and certifications does not render the bid nonresponsive because it does not affect the bidder’s material obligations. Such a failure therefore may be waived as a minor bidding irregularity and the information may be furnished after bid opening. Jettison Contractors, Inc., B-242792, June 5, 1991, 91-1 CPD para. 532 at 2. Similarly, and as conceded by the protester, the solicitation did not require that bidders be registered in the CCR prior to bid opening, but rather, required such registration prior to award. IFB at 117; Federal Acquisition Regulation sect. 52.204-7(b)(1) (requiring that a prospective awardee shall be registered in the CCR database prior to award); see Graves Constr., Inc., B-294032, June 29, 2004, 2004 CPD para. 135 at 3 (protester not prejudiced by the agency’s failure to verify whether the awardee had registered in the CCR prior to award). Moreover, the agency advises that during the course of this protest ECI Northeast has registered on the CCR. As such, and contrary to the protester’s view, the agency properly considered ECI Northeast’s bid responsive.  (Charter Environmental, Inc., B-297219, December 5, 2005) (pdf)

The agency received 10 technical proposals, seven of which were found to be technically acceptable. The seven firms submitting the technically acceptable proposals were thereafter requested to submit bids. At bid opening, McNeil's was the apparent low bid. After reviewing McNeil's bid, the agency initially determined that it was nonresponsive because McNeil had used tiered pricing in CLIN 0003, 0004, 0005, 0006 and 0009. More specifically, while the solicitation called for a single unit price for each CLIN, McNeil's bid included more than one price for each CLIN, with the price varying depending upon the quantity ordered (for example, under CLIN 0004, McNeil bid26.93 per hour for the first 400 hours, and $24.03 for all hours in excess of 400 hours, up to the specified maximum quantity of 15,000 hours). In addition, McNeil's bid sheet showed the original 66,000 hour maximum quantity for CLIN 0003, rather than the amended 50,000 hour figure. Finally, for CLIN 0002, McNeil's bid schedule included the title "team leader" rather than the term "shift supervisor," as provided for in the solicitation. Based on these perceived deficiencies, the contracting officer advised McNeil that its bid had been found nonresponsive. McNeil protested the agency's decision to our Office. In response to that protest, the agency advised us that it intended to reconsider the McNeil bid, and we dismissed McNeil's protest as academic. (B-295533, Jan. 10, 2005). Thereafter, McNeil and the agency engaged in several rounds of correspondence. As a result of that correspondence, McNeil was permitted to substitute the correct 50,000 hour maximum quantity for CLIN 0003 (replacing the 66,000 hour figure), to correct minor mathematical errors in its overtime rates, and to substitute the term "shift supervisor" for "team leader" in its bid schedule. The seven technically acceptable bids then were reevaluated, and it was determined that McNeil's revised bid of12,252,065 was low; SOS's bid of $13,889,265 was next low. Consequently, the contract was awarded to McNeil on that date, and this protest followed. McNeil's bid was responsive. In this regard, the record shows that McNeil's bid was low under all possible calculations, including where only the firm's higher hourly rates are applied. [1] In addition, McNeil's tiered pricing neither expressly nor implicitly limits the firm's obligation to perform in exact accordance with the requirements of the solicitation. Rather, the only effect of McNeil's tiered pricing would be to reduce the cost of performance as larger quantities are ordered. Under these circumstances, McNeil's bid's deviation from the pricing scheme called for by the IFB was immaterial and therefore did not render its bid nonresponsive. See RR Donnelley, Inc. B-294395, Sep. 15, 2004, 2004 CPD paragraph 199 (bid based on two different shipping weights rather than the single weight called for by IFB is responsive where bid would be low applying either of the two weights, and deviation did not operate to qualify bidder's obligation to perform in accordance with IFB requirements).


SOS argues that McNeil's bid was nonresponsive because it was based on an incorrect maximum number of hours for CLIN 0003. However, a bid based on a larger quantity than is required by the solicitation is nevertheless responsive, so long as it is not conditioned on the government's award of a quantity larger than that called for under the solicitation, and the solicitation does not preclude award of a quantity smaller than the maximum quantity specified. Charles V. Clark Co., Inc, B-196712, Mar. 12, 1980, 80-1 CPD paragraph 194 at 2-3. Here, as noted, this is an IDIQ contract under which the government is obligated to order only the minimum guaranteed quantities, but may order additional quantities, up to the maximum specified in the solicitation. Thus, the agency is obligated to purchase the 1,000 hour minimum quantity under CLIN 0003, but may elect to purchase a larger quantity up to the specified maximum of 50,000 hours. As McNeil's bid did not condition its obligation to perform on the government's ordering the erroneous maximum quantity (66,000 hours), it follows that the agency could order any quantity up to the correct lower maximum of 50,000 hours without changing McNeil's performance obligation, and would not be obligated to order the additional 16,000 hours specified in McNeil's bid. McNeil's bid's inclusion of the incorrect maximum quantity for CLIN 0003 therefore was immaterial and did not render the bid nonresponsive.  (SOS International, Ltd., B-295533.2; B-295533.3, July 1, 2005) (pdf)

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 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. , B246601, Mar. 10, 1992, 92-1 CPD 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.  (McKinley Construction & Excavating, B-295547, March 3, 2005) (pdf)
 

Federal Acquisition Regulation 14.402-1 requires the public opening of unclassified bids. Our Office has interpreted the requirement for a public opening to mean that the bid must publicly disclose the essential nature and type of products offered and those elements of the bid that relate to price, quantity, and delivery terms, since the purpose of publicly opening bids is to protect both the public interest and the bidders from any form of fraud, favoritism, or partiality, and to leave no room for suspicion. VACAR Battery Mfg. Co., Inc. , B-223244.2, June 30, 1986, 86-2 CPD 21. Therefore, we have held that restricting the disclosure of a bid renders it nonresponsive. Id. Given that Spotless's hand-delivered, written SF 1449 and bid schedule properly were accepted by the agency as explained above, and expressly provided that the documents were not to be disclosed publicly, the agency correctly rejected Spotless's bid as nonresponsive. (Spotless Janitorial Services, Inc., B-295620, February 18, 2005) (pdf)

Here, although the protester acknowledged receipt of amendment No. 3, its bid cover letter offered a materially different performance period than was required under the amendment. As the agency points out, Integrated's cover letter is based on a subjective, indefinite standard--"substantial completion" of unidentified work. As a result, the cover letter limits the agency's right under amendment No. 3 to require the contractor to operate the plant until final acceptance of the base item.  The cover letter thus qualifies a performance term of the amended IFB, materially affecting the rights and obligations of the contractor and agency. Accordingly, the agency properly rejected the bid as nonresponsive. To be responsive and considered for award, a bid must contain an unequivocal offer to perform, without exception, the exact thing called for in the solicitation, so that, upon acceptance, the contractor will be bound to perform in accordance with all of the IFB's material terms and conditions. If in its bid (including its bid cover letter), a bidder conditions or modifies a material solicitation requirement (such as a performance period), limits its liability to the government, or limits the rights of the government under a resulting contract, then the bid must be rejected as nonresponsive. See Tel-Instrument Elecs. Corp. , B291309, B-291309.2, Nov. 20, 2002, 2002 CPD 203 at2-3; Interstate Constr., Inc. , B281465, Feb. 10, 1999, 99-1 CPD 31 at 2; Balantine's South Bay Caterers, Inc. , B250223, Jan. 13, 1993, 93-1 CPD 39 at 3-4. Further, a bid that is nonresponsive on its face may not be made into a responsive bid through post-bid-opening clarifications, and mistake-in-bid procedures may not be used to render the bid responsive. See National Office World, Inc. , B-224120, Sept. 5, 1986, 86-2 CPD 270 at 2. (Oregon Electric Construction, Inc. dba Integrated Systems Group, B-294279, September 27, 2004) (pdf)

The IFB requested bids to print, bind and otherwise prepare 3,994,000 copies of IRS pamphlet 1040A-1 (80 pages) and 2,947,000 copies of IRS pamphlet 1040A-2 (90pages). The IFB provided that price would be evaluated by adding together the extended prices bid for the specified tasks and transportation charges. The IFB required bidders to provide a "Guaranteed maximum weight of package (to 000.1pound) _____," which the agency used to compute the transportation charges. Donnelley bid 2,174,543 to perform the work and listed the guaranteed maximum weight of its package as .375 pounds. Using this weight, GPO computed Donnelley's transportation charges as $976,284.17, resulting in a total evaluated bid of $3,150,827.17. Banta bid $2,235,227.94 to perform the work and included two guaranteed maximum weights in its bid--.3142 pounds for 1040-A1 and .3633 pounds for 1040-A2. GPO used both weights in computing the transportation charges for Banta's pamphlets as $745,752.85, which resulted in a total evaluated bid price of $2,980,980.79. The agency made award to Banta as the low bidder. Donnelley protests that Banta's bid should have been rejected as nonresponsive for including different guaranteed maximum weights for the two pamphlets instead of the single weight called for by the IFB. The test for responsiveness is whether a bid offers to perform the exact thing called for in an IFB, so that acceptance of the bid will bind a bidder to perform in accordance with all of the terms and conditions of a solicitation without exception. Fire Sec. Sys. Inc. , B259076, Mar. 2, 1995, 95-1 CPD 124 at 3. Here, the agency requested the guaranteed maximum weight to establish the maximum amount that could be reimbursed to the contractor for transportation costs, which amount was to be added to the bids for evaluation purposes. Banta's inclusion of a second, lesser, weight for the 1040-A1 pamphlets did not reduce or otherwise affect Banta's performance obligations, and therefore did not affect the responsiveness of Banta's bid. While a bid also must be rejected as nonresponsive if it is ambiguous regarding the actual price the government would be obligated to pay upon acceptance of the bid, Murray Serv. Co. t/a EMD Mech. Specialists , B-274866, Dec. 9, 1996, 962CPD 220 at 2, that clearly is not the situation here. Banta's properly evaluated bid price--that is, its price based on a single guaranteed weight--can be calculated using the greater of the two weights provided in Banta's bid. GPO has performed this calculation and reports--and Donnelley has not refuted--that Banta's bid remains low when transportation costs are calculated in this way. Thus, Banta's evaluated bid price was clear and its bid, therefore, responsive. (RR Donnelley, Inc., B-294395, September 15, 2004) (pdf)

Where an IFB provides that award will be made to the low aggregate bidder, a bid that fails to include a price for every item required by the IFB generally must be rejected as nonresponsive. HH&K Builders, B-232140, Oct. 20, 1988, 88‑2 CPD ¶ 379 at 2, recon. denied, B-232140.2, Nov. 30, 1988, 88-2 CPD ¶ 537. This rule reflects the legal principle that a bidder who has failed to submit a price for an item generally cannot be said to be obligated to furnish that item. United Food Servs., B-218228.3, Dec. 30, 1985, 85-2 CPD ¶ 727 at 3. Apart from whatever other defects may arise out of Thompson’s failure to revise the numbers and the option descriptions to conform to the schedule, we agree with the contracting officer that there was no clear indication within Thompson’s bid that Thompson priced approximately half of the option CLINs (those on the second page of options B, C, and D). This created doubt as to whether Thompson intended to furnish the services on those CLINs, and thus rendered its bid nonresponsive. See Jorgensen Forge Corp., B-255426, Feb. 28, 1994, 94‑1 CPD ¶ 157 at 2 (bidder’s use of “n/a” on bid created doubt whether bidder intended to furnish item, rendering bid nonresponsive). The Corps therefore properly rejected Thompson’s bid as nonresponsive. (Thompson Metal Fab, Inc., B-293647, May 4, 2004) (pdf)

With regard to the completeness of Petticoat's bid, the agency printout clearly shows that all three pages were included with the bid.  The confusion was caused, it appears, by the computer's reading the last two faxed pages as a single page.  The agency explains that, since only two pages were shown as having been received when it initially read the bid, it did not bother to scroll down further after seeing that the second page was not the bid schedule--this would have revealed the attached third page.  COS ¶ g.2.b.  Instead, the agency assumed at that point that no bid schedule page was received.  The agency's mere failure to read the entire bid is not a basis for finding that the bid was not timely received.  We find the documentary evidence, together with the agency's explanation, clear evidence that Petticoat's bid was received prior to bid opening, and was complete.  Mitchell has provided no evidence that shows otherwise.  Accordingly, there is no basis for questioning the award.  (Mitchell Roofing & Contracting, B-290462, June 25, 2002 )

A requirement for the submission of the permits necessary for performance at a particular site relates to how the contract requirements will be met, rather than to the performance requirements themselves; such a requirement thus pertains to bidder responsibility. VA Venture; St. Anthony Med. Ctr, Inc., B-222622, B-222622.2, Sept. 12, 1986, 86-2 CPD ¶ 289 at 5.  A bidder need not demonstrate compliance with solicitation requirements pertaining to its responsibility, that is, its ability to perform as promised, in order to have its bid determined responsive. Moreover, the fact that the IFB called for submission of a permit showing that the proposed disposal site was “legal to operate” as of the bid opening date does not convert the permit requirement into a matter of bid responsiveness. The terms of a solicitation cannot convert a matter of responsibility into one of responsiveness. Integrated Prot. Sys., Inc., B-254457.2, B-254457.3, Jan. 19, 1994, 94-1 CPD ¶ 24 at 3; Norfolk Dredging Co., B-229572.2, Jan. 22, 1988, 88-1 CPD ¶ 62 at 3.  (Great Lakes Dredge & Dock Company, B-290158, June 17, 2002 (pdf))

Where invitation for bids (IFB) expressly required option period prices to be determined solely by application of IFB's economic price adjustment clause, bid was properly rejected as nonresponsive for offering different option year prices, since the economic price adjustment clause is a material term of the IFB and any bid taking exception to it materially affects the legal rights of the bidder and the government.  (First American Engineered Solutions, B-289051, December 20, 2001)

Where, however, a bidder agrees to hold its bid open for the minimum bid acceptance period required by the solicitation and complies with each agency request for an extension of its bid acceptance period, the bidder has obtained no advantage over the other bidders and the integrity of the bidding system is not compromised if the bidder is subsequently permitted to revive an expired bid. See Carnes Constr., Inc., B-241778, Feb. 26, 1991, 91-1 CPD ¶ 215 at 3.

Here, Jackson agreed to hold its bid open for the 30-day period originally requested by the agency. It then extended its bid acceptance period without the agency's having requested it, and confirmed, when requested by the agency to do so, that its bid would remain open until October 16. Thus, the record in no way suggests that Jackson endeavored to obtain an advantage over other bidders by offering less than the requested bid acceptance period. Furthermore, Jackson was not required to extend its bid acceptance period through the pendency of its protest because a party's active participation in a bid protest, without a formal extension of its bid acceptance period, tolls that period until the protest is resolved. See S. J. Groves & Sons Co., B-207172, Nov. 9, 1982, 82-2 CPD ¶ 423 at 2.  (Consultants Ltd., B-286688.2, May 16, 2001)

Forest Service properly rejected bid for timber sale as nonresponsive where protester failed to include a price for one of the several line items being sold; in the absence of a price for the item, the agency reasonably concluded that there was doubt regarding whether the protester had offered to perform that aspect of the requirement.  (New Shawmut Timber Company, B-286881, February 26, 2001)

As a general rule, where, as here, an IFB provides that award will be made to the low aggregate bidder, a bid that fails to include a price for every item required by the IFB must be rejected as nonresponsive. HH&K Builders, B-232140, Oct. 20, 1988, 88-2 CPD ¶ 379 at 2, recon. denied, B-232140.2, Nov. 30, 1988, 88-2 CPD ¶ 537. This rule reflects the legal principle that a bidder who has failed to submit a price for an item generally cannot be said to be obligated to furnish that item. United Food Servs.,B-218228.3, Dec. 30, 1985, 85-2 CPD ¶ 727 at 3.  We have held that the omission of a price for a certain line item may be corrected in the rare circumstance where the price for the omitted item can be determined from the initial bid submitted based upon the difference between the total bid price and the sum of the line item prices present on the face of the bid. See, e.g., MKB Constructors, Joint Venture, B-250413, Jan. 15, 1993, 93-1 CPD ¶ 50 at 2-3, recon. denied, B-250413.2, June 8, 1993, 93-1 CPD ¶ 441. These cases apply the strict criteria required for correction of mistakes. See Federal Acquisition Regulation § 14.407-3(a). That is, the omitted price could be corrected only because the bid, as submitted, indicated that an error had been made, the exact nature of the error, and the intended price for the bid item. MKB Constructors, Joint Venture, supra.  (Newfield Construction, Inc., B-286912, February 6, 2001)

Evidence required to show the authority of an individual signing a bid may be presented after bid opening. FMS Corp., B-228201, Sept. 30, 1987, 87-2 CPD para. 318 at 1; Cambridge Marine Indus., Inc., B-202965, Dec. 31, 1981, 81-2 CPD para. 517 at 2. The sufficiency of the evidence presented is largely a factual question to be resolved by the contracting agency after consideration of all the materials presented. Alpha Q, Inc., B-234403.2, Oct. 31, 1989, 89-2 CPD para. 401 at 2.  In Alpha Q, Inc., supra, the low bid received bore the "signature" of the president of the firm followed by three initials in parenthesis. Because of this, the agency requested information from the firm "concerning the legal effectiveness of the signature." Id. at 2. The firm explained in an affidavit that the bid, at the direction of the president, had actually been signed by an employee of a prospective subcontractor of the firm. The agency determined that the explanation "was sufficient evidence to establish the signing individual's authority to execute the bid and bind [the firm]." Id. at 3. Our Office, in considering a protest challenging the responsiveness of the bid and propriety of the agency's actions, found that the agency had properly requested the information, that its factual determinations based upon the information received were reasonable, and that the agency had properly found the bid responsive.  Our decisions in this area recognize an obligation on the part of an agency that has questions regarding the authority of the individuals whose signatures appear on a bid to raise these questions with the bidder. See, e.g., Cambridge Marine Indus., Inc., supra. Here, we agree with the contracting officer that the differing appearance of the signatures on G & J's bid raised certain concerns, such as who actually signed the bid or whether there may have been a forgery. However, the concerns raised, rather than requiring the rejection of G & J's bid, obligated the contracting officer to seek an explanation from G & J, and this was in essence done through the above-noted exchange of letters between the contracting officer and G & J. The contracting officer, however, then erred in ultimately concluding that she could not consider G & J's post-bid-opening explanation. Rather, the contracting officer was obligated to consider G & J's explanation in resolving her concerns. See id.  (G & J Small Construction, Inc., B-286716, February 5, 2001)

A bid that is based upon the incorrect premise that only three full-time and two part-time positions were required under a solicitation for services where the invitation for bids clearly requires five full-time positions may not be corrected.  (Aquila Fitness Consulting Systems, Ltd., B-286488, January 17, 2001)

In particular, a bid such as D.B.I.'s, which uses lump sum prices rather than separate prices as called for under a bid schedule which contains lines for separate pricing entries is responsive where there is no ambiguity as to the bidder's legal obligation to perform as required by the solicitation. Inland Serv. Corp., supra, at 3. A lump-sum bid submitted in place of a line-item bid is responsive where it merely reflects a firm's agreement to perform the contract work for a single lump-sum price. Mike Johnson, Inc., supra, at 3. This kind of "irregular" price entry renders the bid unacceptable only where it results in benefits to the bidder which were not extended to all bidders by the IFB. If the irregularity is prejudicial to other bidders, then the bid should be rejected as nonresponsive. Valix Fed. Partnership I, B-250686, Feb. 1, 1993, 93-1 CPD para. 84 at 4. Here, D.B.I. acknowledged all amendments and submitted its prices on the revised bid schedule. Its pricing entries clearly bound it to perform all the work required by the solicitation, since D.B.I.'s bid specifically noted that its flat rate per haul included disposal charges. D.B.I.'s pricing in this respect is functionally equivalent to the entry of "NSP" ("not separately priced") or "N/C" ("no charge") notations, which we have found express the bidder's affirmative intent to obligate itself to provide the item at no charge to the government and therefore do not provide a basis to reject a bid. Kasco Fuel Maintenance Corp., B-274131, Nov. 22, 1996, 96-2 CPD para. 197 at 4. D.B.I.'s bid entries for the hauling and disposal charges simply combine the two sub-CLIN requirements and indicate that the disposal charge sub-CLIN is not separately priced but is included in the price for the hauling charge sub-CLIN. Thus, contrary to VA's assertion, D.B.I.'s pricing format does not, by itself, require the rejection of the bid as nonresponsive for failure to comply with a material IFB requirement.  (D.B.I. Waste Systems, Inc., B-285049, July 10, 2000)

Protester's bid is responsive, despite a discrepancy in the name of the bidder as identified on the bid and the name of the principal identified in the required bid bond, where reasonably available extrinsic evidence in existence at the time of bid opening establishes that the bidder and principal are the same entity, such that there is no doubt that the surety will be liable under the bond to the government on the bidder's behalf.  (Harris Excavating, B-284820, June 12, 2000)

The record here sufficiently identifies Heavenly Ham as the same legal entity as Knox-Ham Enterprises, so that the bid submitted by Heavenly Ham at 9307 Kingston Pike, Knoxville, Tennessee, would legally bind Knox-Ham Enterprises. The information on the CCR, as well as the business tax licenses, business tax returns, food service inspection report, articles of organization, and certificate of existence--evidence which existed and was publicly available at the time of bid opening--show that Heavenly Ham with the address of 9307 Kingston Pike in Knoxville is the trade name for Knox-Ham Enterprises, a North Carolina LLC, and does not exist as a separate legal entity.  (Specialized Contract Services, Inc., B-283451, October 21, 1999)

Delivery terms are a material requirement and thus a bid that takes exception to the stated delivery terms is nonresponsive and must be rejected. Copley Int?l Trading Partners; Western States Elec., Inc., B-248751, B-248751.3, Sept. 10, 1992, 92-2 CPD para. 167 at 3. Further, a bid which is nonresponsive on its face may not be made into a responsive bid by post-bid opening clarifications or corrections. Lathan Constr. Corp., B-250487, Feb. 5, 1993, 93-1 CPD para. 107 at 3-4.  (Valley Forge Flag Company, Inc., B-283130, September 22, 1999)

We recognize that the amended bid schedule, by creating a box with a dollar sign in the box on the line identifying the overall CLIN, suggests that a price should be included in that box for the CLIN overall (in addition to the prices for the sub-CLINs). In our view, however, no possible prejudice arose to the protester, and we therefore conclude that there is no basis to challenge EPA's considering bids which failed to write a price in the box on the CLIN line.  (American Analytical & Technical Services, Inc., B-282277.2, July 16, 1999)

Here, the effect of the conditions attached to Ellicott's bid was that the bid was premised on modifying material requirements of the IFB. In this regard, it is not disputed that the requirements for a particular grade of forged steel and for approval of flame cutting are material, since they relate to the quality of the project. While the protester notes that the IFB provided for acceptance of alternate material or flame cutting, the cited provisions pertain to contract performance by the successful contractor and cannot be relied upon by bidders to condition their bids, as Ellicott appeared to do here, on receiving approval of material other than that required by the IFB.  (Ellicott Engineering, Inc., B-282382, June 23, 1999)

As discussed in detail below, since the Kinley bid qualification conditions performance by the firm on the agency taking steps to clean the tanks and render them "gas free," the bid imposes additional obligations on the agency not contemplated by the IFB which limit the government's rights, as well as the contractor's liability under the contract. The bid therefore must be rejected as nonresponsive.  (Interstate Construction, Inc., B-281465, February 10, 1999)

GAO relies on cases that variously fall into one of three lines of analysis—that is, either omitted price cases, unacknowledged solicitation amendment cases, or ambiguous bid cases.

1. Omitted Price Cases

An omitted price case is one in which the bidder inadvertently left a blank line for one or more contract line items, or omitted an entire bid schedule required by the solicitation. See, e.g., HH & K Builders, B-232140, 1988 WL 228028, at *1 (Comp. Gen. Oct. 20, 1988). An omitted price is significant because a bid “that fails to include a price for every item required by the IFB generally must be rejected as nonresponsive.” Tab 38, AR 1121 (citing HH & K Builders, 1988 WL 228028, at *1).

GAO cited three omitted price cases in which the discussion focused on the bidder’s omission of either a price or a separate bid schedule, and whether that omission could be waived as a minor informality. Tab 38, AR 1121 (citing Massillon Constr. & Supply, Inc., B-407931, 2013 WL 1281625, at *3 (Comp. Gen. Mar. 28, 2013); HH & K Builders, B-232140, 1988 WL 228028, at *2 (Comp. Gen. Oct. 20, 1988); United Food Servs., 65 Comp. Gen. 167, 169 (1985).

The test for determining whether an omission may be waived is whether “the item for which the price is omitted is divisible from the solicitation’s overall requirements, [is] de minimis as to total cost, and would not affect the competitive standing of the bidders,” were the omitted price added to the bid total. Massillon Constr. & Supply, 2013 WL 1281625, at *3. If the omission qualifies for waiver as a minor informality, the bid is responsive. See, e.g., United Food Servs., 65 Comp. Gen. at 171 (observing that “the rule that prevents an obvious clerical error of omission from being converted to a matter of responsiveness is applicable here . . . .”).

HH & K Builders failed to provide a price for one item in its bid and the agency rejected it as nonresponsive. HH & K Builders, 1988 WL 228028, at *1. In its GAO protest, HH & K claimed that the omission was an oversight, that it had intended to bid $0 for the item (a clearly de minimus amount), and that it should be allowed to correct its bid under FAR 14.405. Id. GAO denied HH & K’s protest, finding that the omitted price was not divisible from the information in the bid, as there were no similar line items in the bid. Id. at *2.

Similarly, in Massillon Construction, GAO found that price information on an omitted schedule was not divisible from the other prices in the bid. Massillon Constr. & Supply, 2013 WL 1281625, at *4. Thus, the omission of the required schedule could not be waived as a minor informality under FAR 14.405. Id.

In contrast, in United Food Services, GAO found that the omitted prices were divisible from information in the bid and sustained the protest. United Food Servs., 65 Comp. Gen. at 171. The agency issued Amendment no. 2 to the IFB, which required bidders to submit bids to provide services in three dining facilities not included in the original solicitation, for a base year and four subsequent one-year options. Id. at 168. For one of the new facilities, United provided a bid for the base year, but omitted bids for each of the four one-year options. Id.

Nonetheless, GAO found that a pattern of pricing existed from the base to option year bids for the two new dining facilities for which United did provide complete bids, such that a narrow range of prices for the omitted option year bids for the third dining facility could be discerned. Id. at 170. It was clear that even with the additional prices, United would remain the lowest bidder, thus the competitive standing of the bidders would be unaffected. Id. at 171.

RUSH is not like HH & K Builders, Massillon Construction, or United Food Services because RUSH omitted no prices from its bid. See Tab 8, AR 925-26. The agency acknowledged as much, when it told GAO that in RUSH’s bid, “all line items were priced and none were left off or added.” Tab 35, AR 1108. Likewise, C&D acknowledged that “[t]he defect in Rush’s bid is entirely different from the omitted line item price cases. Rush’s bid error was not a missing line item that was ‘divisible from the solicitation,’ . . . .” Def.-Int.’s Mot. 22.

2. Unacknowledged Amendment Case

An unacknowledged amendment case is one in which the bidder has failed to acknowledge receipt of an amendment to the solicitation prior to the bid opening.
FAR 52.214-3 requires that “[b]idders . . . acknowledge receipt of any amendment to this solicitation, . . . . [and] [t]he Government . . . receive the acknowledgment by the time and at the place specified for receipt of bids.” FAR 52.214-3(b). A bidder’s failure to acknowledge an amendment can render its bid nonresponsive. See, e.g., Pro Alarm Co., 69 Comp. Gen. 727, 727-28 (1990).

GAO cites Pro Alarm Company for the proposition that the bidder’s failure to acknowledge an amendment to the solicitation may be waived where the amendment results in less stringent obligations on the bidder. Tab 38, AR 1121 n.8 (citing Pro Alarm Co., 69 Comp. Gen. 727 (1990)). The agency had rejected Pro Alarm’s bid as nonresponsive due to its failure to acknowledge the one amendment to the IFB. Id. at 727-28. GAO’s analysis in Pro Alarm Company focused on whether the amendment was material. An amendment is material if it imposes legal obligations on the contractor that were not contained in the original solicitation. Versailles Maint. Contractors, Inc., B-203324, 1981 WL 23222, at *3 (Comp. Gen. Oct. 19, 1981). The failure to acknowledge a material amendment cannot be waived, and the failure to acknowledge such an amendment renders a bid nonresponsive. Pro Alarm Co., 69 Comp. Gen. at 728.

The amendment at issue in Pro Alarm Company increased the amount of time allotted to the contractor for the completion of the work. Id. at 729. It imposed no additional obligation on the contractor, and thus was not a material amendment. Id. GAO found that because the amendment was not material, Pro Alarm Company’s failure to acknowledge the amendment could be waived, and it sustained the protest. Id. at 728.

Pro Alarm Company is distinguishable from this case. GAO stated in its decision that RUSH acknowledged all five amendments to the solicitation. Tab 38, AR 1118 (“RUSH’s bid identified the IFB, and acknowledged each of the five amendments by its number and date.”); see also Tab 24, AR 1039 (RUSH’s signed acknowledgement).

Nonetheless, GAO relied on the Pro Alarm Company case as it considered the materiality of the work specified in Note 6 to the bid schedule in Amendment no. 5. Tab 38, AR 1121 n.8. According to GAO, if the specified work was not deemed material, then RUSH’s “reference to the incorrect note [Note 9 instead of Note 6 written next to the east wall (option A) fender installation line item] could be considered immaterial,” and thus waived. Tab 38, AR 1121 n.8.

We recognize that the possibility that the revised Note 6 requirement to reuse fender material might impose a less stringent obligation than Note 9’s requirement to furnish all new material, which the Corps argues was reflected in lower per-foot pricing for that line item in 8 of the 11 bids. Agency Response to GAO Questions, Feb. 4, 2014, at 2. Failure to acknowledge an amendment may be waived where the amendment results in less stringent obligations on the bidder. . . . E.g., Pro Alarm Co., B-240137, Sept. 20, 1990, 90-2 CPD ¶ 242 at 3 (failure to acknowledge amendment that extended completion time did not render bid nonresponsive). However, even if some bidders offered lower per-foot pricing for the east wall fender installation, the record does not show that the Note 6 requirement was less stringent than Note 9. Rather (as C&D argues) removing existing fender material requires the contractor to take additional steps to ensure that the material is removed without damage, and stored while other repairs are made, and then reinstalled. See C&D Response to GAO Questions, Feb. 4, 2013, at 3. Since those additional steps would not be required if all new fender material were to be used, we have no basis to regard the fender reuse requirement or revised Note 6 to be less stringent than the all-new-material requirement of Note 9, so that [the] reference to the incorrect note could be considered immaterial.

Id. (emphasis added).

By analyzing the omission of a bid schedule note under Pro Alarm Company, GAO equates such an omission with an unacknowledged solicitation amendment. But GAO offers no explanation for why it made this comparison. There is no obvious parallel between the two fact scenarios, and GAO does not attempt to analogize the facts of Pro Alarm Company to those of RUSH. GAO also does not explain why it thought it necessary that RUSH specifically “acknowledge” Note 6, when RUSH acknowledged Amendment no. 5, in which Note 6 was included. Tab 38, AR 1118; Tab 24, AR 1039. Because the Pro Alarm Company discussion has no apparent applicability to this case, GAO’s reliance on it seems to be misplaced.

3. Ambiguity Case

An ambiguity case is one in which the bid is susceptible to more than one possible interpretation. If GAO determines there is more than one possible reasonable interpretation of the bid, it is ambiguous and thus, deemed nonresponsive. See, e.g., J. Caldarera & Co., B-276201, 1997 WL 267537, at *1 (Comp. Gen. May 21, 1997) (citing Sabreliner Corp., 64 Comp. Gen. 325, 328 (1985)).

In Thompson Metal Fab, the bidder erred by including photocopies of the bid schedule for option A, and using the copies as its bid schedule pages for Options B, C and D, without making the necessary edits to those pages. Thompson Metal Fab, Inc., B-293647, 2004 WL 964056, at *1 (Comp. Gen. May 4, 2004).

The agency had issued an amended bid schedule consisting of ten pages, two pages each for base work and four separate options. Id. at *1. Contractors were required to bid on all four options, with each option representing work on one of four separate gates for a lock and dam spillway project. Id. “For the successive additional gate options, the bid schedule contained essentially identical contract line item descriptions and quantities for each option, with only the contract line item numbers (CLINs) increasing in sequence.” Id.

Thompson copied its option A form three times, and on each form crossed out the “A” at the top of the page and wrote in either “B,” “C,” or “D.” Id. Thompson neglected, however, to cross out the additional label “First Additional Gate,” which remained on each form, although the gates in options B, C and D were, respectively, the second, third and fourth additional gates. Id. Thompson also failed to edit the bid subtotal price at the bottom of each bid, which incorrectly said “Total Option A,” as well as the contract line item numbers, which differed for each of the four options. Id.

GAO noted that the “second schedule page of options B, C and D in Thompson’s bid was identical to the second page of its option A schedule.” Id. (emphasis added). GAO found that

there was no clear indication within Thompson’s bid that Thompson [had intended to] price[] approximately half of the option CLINs (those on the second page of options B, C, and D). This created doubt as to whether Thompson intended to furnish the services on those CLINs, and thus rendered its bid nonresponsive.

Id. at *2.

Unlike the Thompson case, the second page of RUSH’s bid schedule was not an identical copy of its first page. Although RUSH copied the second page of its bid schedule from the first, RUSH included four items of information that distinguished its second page from its first page. See infra Part II.C.1.

C. Review of the Administrative Record

1. Page Two of RUSH’s Bid Schedule

It is clear from RUSH’s bid submissions that RUSH used the bid schedule accompanying Amendment no. 5. The Corps had included a notation at the bottom of the bid schedule it provided stating “Revised to Accompany Amendment #0005.” Tab 6, AR 902. The bid schedule RUSH submitted included this notation. Tab 8, AR 926. The second page of RUSH’s bid schedule included information that would have been correct for the east wall (option A) bid; but it also contained information that would have been incorrect for that bid. GAO focused on the two pieces of incorrect information on page two in reaching its conclusion that RUSH’s bid was non-responsive.

Page two of RUSH’s bid schedule included the following information—that correctly applied to the east wall (option A) bid and differed from the information provided on page one of RUSH’s bid:

(1) The fender installation line item quantity was listed as 5371 linear feet, correct for the east wall (option A) bid, which differed from the 4177 linear feet listed on page one, correct for the west wall (base option) bid;

(2) The spare piling line item was omitted, correct for the east wall (option A) bid, but was included as the last line item on page one, correct for the west wall (base option) bid;

(3) The subtotal of the line item prices for page two was labeled “Option ‘A’ (Line Items 0002 Thru 0002AN), which included both the correct title and contract line item number range for the east wall (option A) bid; and

(4) The “aggregate” total of the page one and two line item prices was labeled, “Total Base Plus Option ‘A’ (Line Items 0001 Thru 0002AN),” which included both the correct title and contract line item number range for the west wall (base option) and east wall (option A) bids. Tab 8, AR 926.

As pointed to by the GAO, the second page of RUSH’s bid schedule also contained two items of incorrect information:

(1) The heading at the top of page two said “West Approach Wall Repair,” rather than “East Approach Wall Repair;” and

(2) The note next to the fender installation line item said “See Note 9,” rather than “See Note 6.” See Tab 38, AR 1121 (emphasis added); see also Pl.’s Reply 7 (providing annotated comparison of original and corrected bids).

GAO noted the first and third correctly included items set forth above, by making express reference to them in the background discussion section of its decision. Tab 38, AR 1119. But in the analysis section of its discussion, GAO was silent regarding the information on RUSH’s page two that correctly pertained to the east wall (option A) bid. GAO’s silence about how it viewed and weighed the four items of information that were correctly contained on the second page of RUSH’s bid does not afford the court a meaningful opportunity to examine the reasoning that informed GAO’s decision.

2. Note 6 of Solicitation Amendment No. 5

As discussed supra Part II.B.2, GAO determined that the work specified in Note 6 was material and thus concluded that RUSH’s omission of the words “See Note 6” from page two of its bid schedule could not be waived. As reflected in its discussion, GAO treated the “See Note” language included on the bid schedule as the mechanism by which the agency bound the bidder to perform the work specified in that Note. Based on this view, GAO concluded that RUSH’s failure to include the phrase “See Note 6” next to the east wall (option A) fender installation line item constituted a failure to commit to reusing the 1190 linear feet of existing fenders, as specified in Note 6. Tab 6, AR 903. GAO reasoned:

[t]he second page of the schedule . . . identified Note 9 (the west wall fender installation note) as applicable, rather than Note 6 (which, as revised by Amendment 5, required the reuse of fender material). As a result, at the time of bid opening, RUSH had not made a firm commitment to perform the east wall scope of work at specific line item prices.

Tab 38, AR 1121.

The administrative record, however, provides no support for this interpretation of the “See Note” language on the bid schedule. The court makes four specific observations regarding what the administrative record does provide.

First, in its response to questions issued by GAO, the Corps described both Notes 6 and 9 as “notes on how the material would be priced for this contract.” Tab 35, AR 1108. In effect, the agency characterized both notes as pricing notes that provided information about which bidders were to be mindful when pricing their bids. The notes proved effective in that regard. As GAO observed, eight bidders provided lower per-foot pricing for their east wall (option A) fender installation line items based on their commitment to reuse 1190 linear feet of existing fenders and the resultant need to purchase fewer linear feet of fender material for the east wall (option A) work. Tab 38, AR 1121 n.8.

The two page bid schedule furnished by the agency is followed immediately by the one page of notes, and all three pages bear the same title, “Line Items and Pricing Schedule.” Tab 6, AR 901-03. Simply interpreting Notes 6 and 9 as pricing notes is consistent with their placement in the solicitation.

Second, the means by which the agency would bind the bidder to perform the work specified in a solicitation amendment was specifically addressed in the solicitation. “Bidders shall acknowledge receipt of any amendment to this solicitation, . . . . [and] [t]he Government must receive the acknowledgment by the time and at the place specified for receipt of bids.” Tab 1A, AR 10-11 (quoting FAR 52.214-3(b)).

In its decision, GAO recognized that RUSH acknowledged every amendment to the solicitation, including Amendment no. 5. Tab 38, AR 1119 (“RUSH’s bid identified the IFB, and acknowledged each of the five amendments by its number and date.”). But GAO did not explain why RUSH’s acknowledgment of Amendment no. 5 was not a binding commitment to perform the fender installation work described, in part, in Note 6. Nor did GAO explain how RUSH’s writing of the wrong note number on the bid schedule served to invalidate RUSH’s acknowledgment of Amendment no. 5.

Third, the scope of Amendment no. 5 patently exceeds the content of Notes 6 and 9. A twenty-five-page amendment, Amendment no. 5 included detailed specifications about fender installation that went well beyond the information included in Notes 6 and 9. For example, in the Amendment no. 5 Summary of Work, the agency included the following information about east wall (option A) fender installation.

Project scope for Option ‘A’ is to provide the repair for the East timber approach walls to prevent failure and restore the wall to an operational condition. . . . Fiber-reinforced plastic fenders and structural plastic framing will be removed and either replaced or reinstalled as detail[ed] in the contract drawings.

Tab 6, AR 907 (emphasis added).

Amendment no. 5 also included three pages of detailed contract drawings and notes for the east wall work. See id. at 921-23. The drawing of the east wall plan includes a note with two arrows pointing to the bottom two rows of the east wall, specifying “existing [fiber-reinforced plastic] fenders.” Id. at 922. A symbol next to this note indicates that it was “revised to accompany 0005,” that is Amendment no. 5. Id. The legend on the drawing, a series of dashes and dots, indicates that the bottom two rows of fenders are to be “removed and reused.” Id. at 922-23. The directions in these three pages of contract drawings—regarding the removal and reuse of the bottom two rows of existing fenders on the east wall—is identical to that in Note 6. The drawings and their accompanying notes, as would be expected, provide fender installation direction that is far more specific than the direction provided in Note 6. The absence of a reference to the drawings on the bid schedule created no suggestion that a bidder was not bound to perform the work exactly as specified in those drawings, and RUSH had properly acknowledged the amendment containing the drawings.

Fourth, an examination of the solicitation shows that the agency initially did not include any “See Note” entries on the bid schedule. In the original solicitation, the agency included five notes on the page immediately following the bid schedule, but it included no “See Note” entries on the bid schedule itself.7 Tab 1, AR 5-6 (original bid schedule); Tab 1, AR 7 (original list of five notes). Prior to the agency’s decision to annotate the bid schedule with “See Note” entries, bidders were bound by the direction in the notes, as well as by the direction throughout the solicitation, and every amendment thereto. The addition of “See Notes” did not disturb those directions.

GAO’s treatment of the erroneous “See Note” on the second page of RUSH’s bid fails to consider fully the effect of RUSH’s acknowledgment of Amendment no. 5. GAO also fails to provide an explanation for its treatment of Note 6 in a manner that is at variance with the agency’s expressed intention that Notes 6 and 9 serve as pricing notes to bidders.

D Whether the GAO Decision was Rational

GAO found that the discrepancies on page two of RUSH’s bid schedule, in particular the two erroneous references to “West Approach Wall Repair” and “See Note 9,” constituted “material differences in the [solicited] work and the manner of its performance” and thus could not be waived. Tab 38, AR 1122.

The court’s review of GAO’s decision is limited to the question of whether or not the decision is a rational one. Honeywell, Inc., 870 F.2d at 647. Even if GAO’s decision is not a model of clarity, the court must stay its hand if GAO’s decisional path may be reasonably discerned. Bowman Transp., Inc., 419 U.S. at 285-86 (citing Colo. Interstate Gas Co., 324 U.S. at 595 (“[W]e will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.)).

Regarding RUSH’s omission of “See Note 6” on page two of its bid schedule, the court cannot discern from the record the path between GAO’s observation that the omission constituted an error and GAO’s conclusion that it also “reflected [a] material difference[] in the work and the manner of its performance.” Tab 38, AR 1122. As discussed supra Part II.B.2, nothing in Pro Alarm Company supports such a conclusion. A careful review of the facts in the administrative record similarly fails to support the GAO’s interpretation that a note on a bid schedule is necessary to find that the bidder “made a firm commitment to perform” the work specified in that note. See supra Part II.C.2.

GAO has relied on the legal principles set forth in three cases involving the omission of a price. But it has offered no explanation as to how these legal principles support the decision it reached in this case. See supra Part II.B.1. Whether the price of a particular item is divisible from a bid, and if so, whether the omission may be waived, are not pertinent legal issues in RUSH. Moreover, the three cases, HH & K Builders, Massillon Construction & Supply, and United Food Services, are all factually distinguishable from this one because, as the agency acknowledged, RUSH did not omit a price from its bid. See Tab 8; Tab 35, AR 1108. The three cases cited by GAO fail to provide the requisite support for its decision.

As to the erroneous “West Approach Wall” reference contained on page two of RUSH’s bid schedule, GAO concluded that this error, along with the erroneous “See Note 9” reference, furnished evidence that “at the time of bid opening, RUSH had not made a firm commitment to perform the east wall scope of work at specific line item prices.” Tab 38, AR 1121. But GAO did not address the four items of information contained on page two of RUSH’s bid schedule that would have supported a conclusion that RUSH intended page two to reflect its east wall (option A) bid. See supra Part II.C.1. GAO’s narrow focus on one fact—without any apparent consideration of the four other facts that undercut GAO’s ultimate determination—is without rational explanation.

GAO seems to have accepted, without further analysis, C&D’s allegation that RUSH’s bid was ambiguous because both pages of RUSH’s bid referred to west wall work, and neither page referred to east wall work. Tab 38, AR 1120 (“C&D argues that [both pages of RUSH’s bid referring to the west wall] also rendered RUSH’s bid ambiguous and unacceptable.”). GAO then cited to Thompson Metal Fab for the proposition that “where a bidder’s schedule does not clearly indicate that the prices apply to an option that the IFB requires to be priced, the bid is ambiguous and thus, nonresponsive.” Id. at 1121 (emphasis added) (citing Thompson Metal Fab, Inc., 2004 WL 964056, at *1). GAO appears to have concluded summarily that RUSH’s bid schedule was ambiguous, without examining its own case law that sets forth standards for evaluating bid ambiguity.

On various occasions, GAO has spoken directly to the manner in which an ambiguity is to be evaluated:

Generally, an ambiguity in a bid exists where it is subject to two reasonable interpretations. High Country Equip., Inc., B-242669, Apr. 19, 1991, 91-1 CPD ¶ 392. An item in a bid that has more than one possible interpretation does not render a bid ambiguous if the application of reason serves to remove the doubt, leaving only one reasonable interpretation of the bid. Blueridge Gen., Inc., 71 Comp. Gen. 271 (1992), 92-1 CPD ¶ 218;51 Comp. Gen. 831 (1972).

Fire Security Sys., Inc., B-271740, 1996 WL 407572, at *2 (Comp. Gen. July 22, 1996).

To be responsive, a bid must show on its face at the time of bid opening that it is an unqualified offer to comply with all the material requirements of the solicitation and that the bidder intends to be bound by the government’s terms as set forth in the solicitation. John P. Ingram, Jr. & Assocs., Inc., B-250548, Feb. 9, 1993, 93-1 CPD ¶ 117 at 2. If the bid is subject to more than one reasonable interpretation, it is ambiguous and must be rejected as nonresponsive under the rigid rules applicable to sealed bid procurements. Sabreliner Corp., 64 Comp. Gen. 325, 328 (1985), 85-1 CPD ¶ 280 at 4.

J. Caldarera & Co., 1997 WL 267537, at *1.

The mere allegation that a bid is ambiguous does not make it so; an ambiguity only exists where two or more reasonable interpretations are possible. C.T. Bone, Inc., B-194436, Sept. 12, 1979, 79-2 CPD ¶ 190. Thus, an element of a writing in a bid may appear to be confusing and yet not constitute an ambiguity, where there is a single rational explanation, which removes all doubt on that point. Id.

Omni Elevator Co., B- 241678, 1991 WL 73014, at *2 (Comp. Gen. Feb. 25, 1991).

These cases, however, were not addressed here; nor do they appear to have been considered.

Rather, GAO seems to have premised its decision on inapposite case law, a narrow focus on one relevant fact (omission of “See Note 6”), and a failure to consider a number of other relevant facts. GAO’s decision was not rational. Because the agency adopted GAO’s irrational decision, the court finds that the agency’s decision was arbitrary and capricious.  (RUSH Construction, Inc. v. U. S. and C&D Construction, Inc., No. 14-202C, July 15, 20014)  (pdf)  See C&D Construction, Inc., B-408930.2: Feb 14, 2014  (pdf).

3. Whether the Saint Lawrence Seaway Development Corporation Improperly Refused To Allow Plaintiff To Amend Its Bid To Use Materials Specified In The Solicitation.

a. The Plaintiff’s Argument.

Plaintiff argues that, after its bid was erroneously determined to be nonresponsive, SLSDC should have provided Plaintiff with an opportunity to substitute the materials specified in the Solicitation at the same bid price. Pl. Mot. at 9. Contrary to the Government’s contention that allowing Plaintiff to do so would be unfair to other bidders, Plaintiff would not gain any advantage from being allowed to substitute the materials specified in the Solicitation. Id. In addition, there is no FAR provision that authorizes an agency to disqualify a bidder who, after learning that its proposed alternative materials do not meet a solicitation’s specifications, offers to use the specified equipment at the same price. Id. at 9-10. By not allowing Dow Electric to substitute the specified equipment, SLSDC paid $80,000 more for the Project, rendering its decision to be ipso facto arbitrary and capricious.

b. The Government’s Response.

The Government responds that there is no evidence in the record that SLSDC refused to allow Plaintiff to resubmit a new bill of materials using the specified Square-D equipment. Gov’t Mot. at 26. Although Plaintiff offered to substitute different GE materials at no additional cost to SLSDC, Plaintiff has proffered no evidence that it offered to substitute the specified Square-D equipment. AR 309-11.

Even if Plaintiff’s claim was factually supported, FAR 52.214-19(a) prohibits Plaintiff from substituting materials. Gov’t Mot. at 14.6 FAR 52.214-19(a) requires an agency to evaluate sealed bids “without discussions and [to] award a contract to the responsible bidder whose bid, conforming to the solicitation, will be most advantageous to the Government, considering only price and . . . price-related factors.” 48 C.F.R. § 52.214-19(a). Since Plaintiff’s bid did not conform to the Solicitation, SLSDC was required to reject it. Gov’t Mot. at 15. In addition, allowing Plaintiff to modify its bid after the deadline set in the Solicitation would violate the FAR. See 48 C.F.R. § 14.304(b)(1).

Likewise, SLSDC did not have the authority to allow Plaintiff to cure the defects in its bid by substituting Square-D equipment. Gov’t Mot. at 26. An agency may only “waive informalities or minor irregularities in bids received.” 48 C.F.R. § 52.214-19(b); see also 48 C.F.R. § 14.405 (defining a “minor informality or irregularity [as] one that is merely a matter of form and not of substance,” and as an “immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders”). Because the materials used in a construction project are material to the price and quality of the project, an agency does not have the authority to allow a bidder to substitute materials after the submission of its bid. Gov’t Mot. at 27. Even if SLSDC had authority to allow Plaintiff to substitute materials in its bid after submission, doing so would be prejudicial to other bidders and undermine the sealed bidding process. Id.

c. The Court’s Resolution.

As a threshold matter, the Administrative Record does not evidence that Plaintiff offered to substitute the specified Square-D materials at any time, nor has Plaintiff sought to supplement the record with any such evidence.

Assuming, arguendo, that the Administrative Record contained such evidence, Plaintiff’s claim would nevertheless fail. In a sealed bid solicitation, FAR 14.101 requires an agency to evaluate bids “without discussions.” 48 C.F.R. § 14.101(d). Therefore, SLSDC was not obligated to participate in any discussions with Plaintiff once Plaintiff’s bid was submitted.

In addition, FAR 14.304(b)(1) allows an agency to reject a proposed modification of a bid after it is received, unless the proposed modification would not “unduly delay the acquisition” and satisfies one of two narrow exceptions that are not applicable in this case. 48 C.F.R. § 14.304(b)(1).

Even if one of these exceptions applied, allowing Plaintiff to modify its bid could unduly delay the project that was to commence on September 30, 2010. AR 39. Therefore, SLSDC was not obligated to allow Plaintiff to submit a modified bid once it determined that Plaintiff’s initial bid was nonresponsive.

Accordingly, the court has determined that the Government is entitled to Judgment on the Administrative Record as to Plaintiff’s claim that SLSDC improperly refused to allow Plaintiff to substitute Square-D materials.  (Dow Electric, Inc. v. U. S., No. 10-883C, June 2, 2011)  (pdf)

It is true that the FOB Origin contract contains the price for the fire retardant product used in Fire-Trol’s bid. Ms. Hightower could therefore ascertain the price of the product. However, there remains the problem that the contract contained three prices for the product. Second Amended Compl. Ex. 2. Fire-Trol concedes this. Oral Argument p. 5-6, Sept. 19, 2005. Thus, Bid No. 2 did not allow Ms. Hightower to determine a fixed, firm price for the product in order to insert that price into the formula provided for in Fire-Trol’s bid. Further, it is clear that the price in the FOB Origin contract does not include freight, as the contract was FOB Origin and not FOB Destination. Compare FAR 2.101 with FAR 52-247-34. In the FOB Origin contract, the government is responsible for paying freight costs. The FOB Origin contract does not specify specific freight handlers or freight schedules. So, once again, Ms. Hightower was forced to determine a variable in the bid formula -- the freight costs. Fire-Trol insists that section G-2 of the FOB payment provision contained in the IFB does not allow price to vary by date. Oral Argument p. 37, Sept. 19, 2005. In reviewing section G-2, the Court notes that it does not provide specific freight price information. Rather, it provides the three authorized modes of transportation available for contractors to use in order to be reimbursed. AR 6387. The Court notes this section was not referenced on the face of Bid No. 2 together with the caveat. Nor did Fire-Trol specify which mode of transportation it would be using in order for Ms. Hightower to compute the freight price. Since this is a full service contract, and hence FOB Destination, freight is part of the cost to the contractor. The Court finds that while creative, Fire-Trol’s Bid No. 2 simply does not provide a firm, fixed price and therefore Ms. Hightower’s decision was not arbitrary and capricious. (Fire-Trol Holdings, LLC, v. U. S. and Hunot Retardant Company and Astaris, LLC, No. 05-205C & 05-20501C, October 4, 2005) (pdf)