Atherton Construction, Inc.

B-266345 Feb 08, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Which bid was low. Was based on the solicitation scheme and did not allow for manipulation of funds to direct award to any particular bidder. Protest challenging award is denied. Protester which was not low on the base bid was not entitled to award. Solicitation provision stating that award would be made on an "all or none" basis cannot be reasonably interpreted as requiring that award be made for all line items where: (1) the plain language of the provision says only that one award will be made based on however many items are awarded. (2) protester's interpretation is directly in conflict with provision detailing the procedure to be followed to determine the number of additive items upon which award would be based. View Decision Matter of: Atherton Construction, Inc. File: B-266345 Date: February 8, 1996 Where agency's methodology for determining which additive items to award, and which bid was low, was based on the solicitation scheme and did not allow for manipulation of funds to direct award to any particular bidder, protest challenging award is denied; moreover, since all base bids exceeded funding amount established prior to bid opening, making base bids the determining factor for award, protester which was not low on the base bid was not entitled to award. Solicitation provision stating that award would be made on an "all or none" basis cannot be reasonably interpreted as requiring that award be made for all line items where: (1) the plain language of the provision says only that one award will be made based on however many items are awarded, and (2) protester's interpretation is directly in conflict with provision detailing the procedure to be followed to determine the number of additive items upon which award would be based. Attorneys DECISION Atherton Construction, Inc. protests the award of a contract to Dale B. Stevens Construction, Inc. under invitation for bids (IFB) No. F42650-95-B-0034, issued by the Department of the Air Force for the repair/alteration of building 1266 at Hill Air Force Base, Utah. We deny the protest. The IFB was issued on August 8, 1995, and contemplated a firm, fixed-price contract. The project consisted of minor construction, repair, and equipment components which were set out in the bid schedule in nine line items, three base and six additive. Items 0001 (base), and 0004 and 0005 (additive) detailed the minor construction work to be performed. Item 0002 (base) detailed the repair work to be performed; there were no additive items for repair work. Item 0003 (base) and items 0006, 0007, 0008, and 0009 (additive) detailed the equipment-related work to be performed. The IFB included a provision, subparagraph L-507, entitled "AWARD-ALL OR NONE BASIS," which provided: "Notwithstanding the clause at 52.215-16, "Contract Award", of this solicitation, award shall be made to a single bidder/offeror for all items being awarded. Failure to bid on any item including any option periods will be cause for rejecting your bid/offer as non-responsive." On the same page, directly below the above provision, the IFB incorporated by reference Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 252.236-7007, entitled "Additive or Deductive Items (DEC 1991)," which provides (in pertinent part): "(a) The low offeror and the items to be awarded shall be determined as follows-- (1) Prior to the opening of bids, the Government will determine the amount of funds available for the project. (2) The low offeror shall be the Offeror that-- (i) Is otherwise eligible for award; and (ii) Offers the lowest aggregate amount for the first or base bid item, plus or minus (in the order stated in the list of priorities in the bid schedule) those additive or deductive items that provide the most features within the funds determined available. (3) The Contracting Officer shall evaluate all bids on the basis of the same additive or deductive items. (i) If adding another item from the bid schedule list of priorities would make the award exceed the available funds for all offerors, the Contracting Officer will skip that item and go to the next item from the bid schedule of priorities; and (ii) Add that next item if an award may be made that includes that item and is within the available funds. "(b) The Contracting Officer will use the list of priorities in the bid schedule only to determine the low offeror.