PBM Construction, Inc.

B-271344 May 08, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Where facsimile bid modification was unacceptable because it was not authorized by the solicitation. Agency determination to award on the basis of the unexpired original bid is unobjectionable. Bid opening was scheduled for 1:30 p.m. on February 6. Will not be considered unless authorized by the solicitation.". PBM's bid was second low at $544. Asserting that because facsimile bid modifications were not allowed under the solicitation. Stating that although facsimile bids were not authorized by the IFB. [1] since "all contractors who inquired were told . . . they could fax a modification to their bid.". Ten were modified by facsimile. The rules regarding the acceptance of facsimile bid modifications are well settled: a facsimile bid modification must be rejected where the solicitation does not expressly authorize its submission. View Decision Matter of: PBM Construction, Inc. File: B-271344 Date: May 8, 1996 Where facsimile bid modification was unacceptable because it was not authorized by the solicitation, agency determination to award on the basis of the unexpired original bid is unobjectionable. Attorneys DECISION PBM Construction, Inc. protests the award of a contract to Dunton Construction Co., Inc. under invitation for bids (IFB) No. FWS 1-96-014 issued by the Department of the Interior, Fish and Wildlife Service, for certain construction at the Coleman National Fish Hatchery, Anderson, California. PBM contends that the agency improperly accepted the awardee's bid. We deny the protest. Bid opening was scheduled for 1:30 p.m. on February 6, 1996. The IFB required bidders to offer a 75-calendar-day government acceptance period and included the clause at Federal Acquisition Regulation (FAR) Sec. 52.214-5, which provides in relevant part that "[f]acsimile bids, modifications, or withdrawals, will not be considered unless authorized by the solicitation." The IFB did not contain such an authorization. The agency received Dunton's original bid of $491,796 on February 2. By facsimile transmitted on February 5, Dunton increased its bid by $42,700 to a total of $534,496. PBM's bid was second low at $544,780. Both bidders agreed to offer a 75-day government acceptance period. On February 6, PBM filed a pre-award agency-level protest, asserting that because facsimile bid modifications were not allowed under the solicitation, Dunton's bid should be rejected. The contracting officer denied PBM's protest, stating that although facsimile bids were not authorized by the IFB, she had orally authorized facsimile bid modifications, as permitted under FAR Sec. 14.202-7, [1] since "all contractors who inquired were told . . . they could fax a modification to their bid." Of the 28 bids considered for award, ten were modified by facsimile. By letter dated February 22, the agency made award to Dunton at the increased price of $534,496, whereupon PBM protested to our Office. The rules regarding the acceptance of facsimile bid modifications are well settled: a facsimile bid modification must be rejected where the solicitation does not expressly authorize its submission. See Michelin Aircraft Tire Corp., B-248498 et al., Aug. 31, 1992, 92-2 CPD para. 142; G.D. Searle & Co., B-247077, Apr. 30, 1992, 92-1 CPD para. 406; H. Bendzulla Contracting, B-246112, Nov. 8, 1991, 91-2 CPD para. 441; Mabuhay Bldg. Maintenance Co., Inc., B-241908, Nov. 23, 1990, 90-2 CPD para. 424. The government cannot orally modify an IFB to allow for receipt of facsimile bid modifications where the IFB prohibits their submission, because to do so may be prejudicial to the other bidders. [2] G.D. Searle & Co., supra; see also Recreonics Corp., B-246339, Mar. 2, 1992, 92-1 CPD para. 249; Auto-X Inc., B-241302.2, Feb. 6, 1991, 91-1 CPD para. 122. Shortly after PBM filed its protest with our Office, the agency recognized that it was improper for the contracting officer to accept facsimile bid modifications under the IFB. The agency reports that it has counseled the contracting officer that, while FAR Sec. 14.202-7 permits her to authorize facsimile transmissions, FAR Sec. 14.201-6(w) requires that she notify all bidders that facsimile transmissions will be acceptable by inserting the FAR Sec. 52.214-31 clause into the solicitation. In addition, the agency took corrective action by modifying Dunton's contract to reflect its original bid, i.e., imposing a price reduction of $42,700. Dunton is currently performing the work in question at this reduced price. PBM responded by asserting that this corrective action is impermissible. In PBM's view, protection of the integrity of the competitive bidding system requires the rejection of Dunton's bid because, when Dunton was told that its modified price was unacceptable, in effect it was given an improper opportunity to decide whether or not to be bound by its original bid.