Marshall contends that the agency should not have evaluated all
of the option prices because the agency did not have a
reasonable expectation that it would be able to obtain funding
for these options. If all of the options were not evaluated,
Marshall asserts, its proposal would have been lower in price
and could have been determined to be the best value.
Where, as here, the solicitation includes a provision requiring
the evaluation of options, such options must be evaluated
“[e]xcept when it is determined in accordance with FAR [sect.]
17.206(b) not to be in the Government’s best interests” to
exercise the options. FAR sect. 52.217-5. FAR sect. 17.206(b)
provides that it may not be in the government’s best interests
to evaluate options “when there is a reasonable certainty that
funds will be unavailable to permit exercise of the option.”
Here, the contracting officer states that she fully intended to
award the options “as future funds become available” and that
there was a “reasonable likelihood” that the options would be
exercised, as evidenced by a memorandum she prepared three
months before award. Agency Report, Tab 4, Contracting Officer’s
Determination for Use of Option, at 1; Tab 9, Contracting
Officer’s Affidavit, para. 8. In support of these statements,
the contracting officer explains that an additional $2 million
has already been made available for options on this project, and
she has provided documentation showing “remaining funding
authorities and the threshold limits” available for this
project. Agency Report, Tab 9, Contracting Officer’s Affidavit,
para. 7; Tab 11, Request Award Construction Funds, at 1.
Marshall asserts, without support, that additional funding is
“unlikely” and that, absent more definitive proof by the agency
that funding is available, the contracting officer should not
have evaluated option pricing. Protester’s Comments at 2.
However, Marshall misconstrues the burden of proof applicable to
this issue. The test is not whether a contracting officer can
state with certainty that funds will be available to exercise
options. Building Constr. Enters., Inc., B-294784, Dec. 20,
2004, 2004 CPD para. 251 at 2; Contractors NW, Inc., supra, at
4. Rather, FAR sect. 17.206(b) provides that options should be
evaluated unless there is “reasonable certainty” that funds will
not be available. Charles J. Merlo, Inc., B-277384, July 31,
1997, 97-2 CPD para. 39 at 3-4. The record does not show that
there was “reasonable certainty” that funding is not available.
Thus, we cannot find unreasonable the agency’s determination to
evaluate option pricing in this case. (Marshall
Company, Ltd., B-311196, April 23, 2008) (pdf)
Here, the contracting officer states that he intended to
exercise options at the time of contract award if bid prices
were low enough to permit him to do so. However, because the bid
prices were not low enough to permit the contracting officer to
exercise options at contract award, the contracting officer
states that Fort Riley is "attempting to secure additional funds
so that options could be awarded" and that he anticipated, based
upon his experience, that additional funds might become
available, although that is not certain. Affidavit of
Contracting Officer at 2. Although the contracting officer
cannot state with certainty that funds will be available to
exercise options, this is not the test. FAR 17.206(b) does not
require the agency to be clairvoyant in forecasting the
availability of option quantity funding. Charles J. Merlo, Inc.
, B-277384, July 31, 1997, 97-2 CPD 39 at 3-4. Absent a showing
that there is reasonable certainty that funds will not be
available, an agency should evaluate option prices, where the
solicitation provides for their evaluation. See Federal
Contracting, Inc. , B-250304.2, June 23, 1993, 93-1 CPD 484 at
6. The record here shows that the agency is continuing to seek
funds to permit the exercise of the options and that the
contracting officer does not know with reasonable certainty that
funds will be unavailable to permit the exercise of the options.
Accordingly, we find that the agency reasonably evaluated option
prices, as was provided for by the IFB. (Building
Construction Enterprises, Inc., B-294784, December 20, 2004)
(pdf)
Where, as here, the IFB properly includes a provision requiring
the evaluation of options, such options must be evaluated
“[e]xcept when it is determined in accordance with [FAR §]
17.206(b) not to be in the Government’s best interests” to
exercise the options. FAR § 52.217-5. As noted above, the agency
received confirmation the day after bid opening that an
additional $2.2 million would likely be appropriated, which
would cover the cost of the entire project. Given this
expectation of additional funding, the agency determination to
make award based on evaluation of base and optional items was
reasonable. The agency need not have all funds currently
available for optional items in order to evaluate them for
award. See Charles J. Merlo, Inc., B-277384, July 31, 1997, 97-2
CPD ¶ 39 at 3-4; Federal Contracting, Inc., supra, at 5-6.
Although CNI points to a series of pre‑award communications
between agency personnel discussing the fact that only $1.6
million was currently available to fund the project (which is
less than even the base bid), these communications reflect only
the agency’s discussion about how the basic contract could be
funded and do not demonstrate that future funding was not going
to be available, as anticipated. (Contractors
Northwest, Inc., B-293050, December 19, 2003) (pdf)
Thus, a determination not to
evaluate options, made after receipt of bids, does not preclude
an award on the basis of base bid items and, by implication,
does not require the receipt of new bids. Foley Co., B-245536,
Jan. 9, 1992, 92-1 CPD para. 47 at 3; see also Occu-Health,
Inc., B-270228.3, Apr. 3, 1996, 96-1 CPD para. 196 at 4. (ACC
Construction Company, Inc., B-289167, January 15, 2002)
We find that Agriculture could not
reasonably determine that it was in the government's best
interests to evaluate both of these alternate options to
determine the total evaluated price. In this regard, as noted
above, Agriculture knew it would not exercise both options.
Given that Kruger's bid price, after application of the SDB
evaluation preference, would be low, regardless of which option
is evaluated and exercised, we conclude that only Kruger's bid
could be determined most advantageous to the government,
considering price and price-related factors. (Kruger
Construction, Inc., B-286960, March 15, 2001)
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