ACC Construction Company, Inc., B-289167, January 15, 2002

B-289167 Jan 15, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Where bids (including options) exceeded the available funding and agency does not have additional funds available to exercise the options. Which provides: Except when it is determined in accordance with FAR 17.206(b) not to be in the Government's best interests. The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s). ACC objected to the award to R.C. on the grounds that: (1) R.C.'s bid is materially unbalanced. (3) R.C. failed to provide the necessary certifications in its bid to claim the preference and (4) R.C.'s bid was an unauthorized facsimile bid because all of R.C.'s prices were transmitted by facsimile as a bid modification and the solicitation did not allow submission of facsimile bids. View Decision ACC Construction Company, Inc., B-289167, January 15, 2002 DIGEST Attorneys DECISION ACC Construction Co., Inc. protests the proposed award of a contract to R.C. Construction Company under invitation for bids (IFB) No. DACA21-01-B-0010, issued by the Army Corps of Engineers for the construction of an ammunition holding area at Fort Bragg, North Carolina. We deny the protest. On July 18, 2001, the agency issued the solicitation for a fixed-price construction contract. The solicitation, as amended, requested prices for the following: contract line item number (CLIN) 0001, construction of new ammunition storage facility; CLIN 0002, site preparation and development; CLIN 0003, undercut excavation; CLIN 0004, option No. 1, munitions handling system Type F magazine; CLIN 0005, option No. 2, munitions handling system, oval arches; CLIN 0006, option No. 3, scissors lift Type F magazine; CLIN 0007, option No. 4, scissors lift, oval arches; CLIN 0008, option No. 5, security system; CLIN 0008AA, option No. 5, material only; CLIN 0008AB, installation only. Agency Report (AR) encl. 10, IFB schedule. The solicitation notified bidders that options would be evaluated in accordance with Federal Acquisition Regulation (FAR) 52.217-5, which provides: Except when it is determined in accordance with FAR 17.206(b) not to be in the Government's best interests, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s). AR, encl. 9, IFB, at 10. The agency received nine bids. The low bidder, ECI Construction, notified the Corps that its bid contained a mistake and the Corp permitted the firm to withdraw its bid. ACC submitted the second low bid of $15,784,240. AR, encl. 6, Abstract of Bids. R.C. submitted the third low bid of $15,962,000. Id. In its bid, R.C. certified itself as an eligible HUBZone small business concern, thereby entitling it to the 10 percent evaluation preference. /1/ AR, encl. 7, R.C.'s Bid. After application of the HUBZone preference, R.C. became the low bidder. On October 12, ACC filed this protest with our Office. Specifically, ACC objected to the award to R.C. on the grounds that: (1) R.C.'s bid is materially unbalanced; (2) the agency has improperly applied the HUBZone evaluation preference to this procurement; (3) R.C. failed to provide the necessary certifications in its bid to claim the preference and (4) R.C.'s bid was an unauthorized facsimile bid because all of R.C.'s prices were transmitted by facsimile as a bid modification and the solicitation did not allow submission of facsimile bids. On December 19, 2001, after the development of the record, including the submission of the agency report in response to the protest, and the submission of comments from both ACC and R.C., Army headquarters notified the Corps in writing that its pending request for funds to cover the option work under this IFB was denied. /2/ Due to the unavailability of funds, the Corps determined that it is in the best interest of the government to evaluate offers without consideration of the option prices consistent with the solicitation provision that the government will evaluate offers for award purposes by adding the total price for all options to the basic bid except when it determined not to be in the government's best interests. If the options are not part of the evaluation, R.C. is low with or without application of the HUBZone preference, and the Corps proposes to award the base items to R.C. In our view, the agency's decision to evaluate the bids without considering the option prices moots ACC's unbalanced bid and HUBZone allegations since R.C.