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)

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)