DLH Construction and Trucking Company, Inc., B-292578, October 10, 2003

B-292578 Oct 10, 2003 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights DLH Construction and Trucking Company, Inc. protests the rejection of its bid as nonresponsive and the subsequent award of a contract to Holly Marine Towing, Inc. under invitation for bids (IFB) No. DACW23-03-B-0001, issued by the Army Corps of Engineers, Chicago District, for various quantities of stone material. DLH contends that the Corps erroneously rejected its bid as nonresponsive. We deny the protest. View Decision B-292578, DLH Construction and Trucking Company, Inc., October 10, 2003 Decision Matter of: File: Date: DECISION We deny the protest. The IFB, which was issued on February 11, 2003 and amended three times prior to bid opening, provided for the award of an indefinite-delivery/indefinite-quantity fixed-price contract for a base period with four 1-year option periods. IFB at 38. The successful contractor is required to furnish, deliver and unload the stone material onto a government-furnished stone dock located on the Calumet River in Chicago, Illinois. The stone material furnished under this procurement will be used to repair various navigation structures located in Illinois and Indiana and as set forth in the statement of work (SOW) is divided into three size categories: Type A stone (8-15 tons), Type B stone (3-7 tons), and Type C stone (1-100 pounds). IFB amend. 1, SOW at 3. The bid schedule set forth contract line items (CLINs) for the base and each option year requirements and bidders were required to offer unit and extended prices for each. CLIN 0001 required Types A and B stone to be furnished, delivered, and unloaded during the base period. CLIN 0002, the first option period (October 1, 2003 through September 30, 2004), also required Types A and B stone. CLINs 0003-0005, the second (October 1, 2004 through September 30, 2005), third and fourth option periods, respectively, each required Types A, B, and C stone to be furnished, delivered, and unloaded onto the dock on the Calumet River. IFB Schedule. The IFB provided that for purposes of award, the agency would add the total price for all options to the total price for the base requirements and cautioned bidders that evaluation of the options would not obligate the agency to exercise the option periods. IFB at 20. The IFB also stated: Failure to submit a unit price for all items listed will be considered as a material deviation from the requirements of the solicitation and the bid will be rejected. Notwithstanding any other provision of these specifications concerning the method of award, the solicitation will be awarded as a whole to the lowest responsive, responsible bidder. IFB at 44. Six bids were received and opened on the March 18 opening date. The four lowest evaluated bids were as follows: Bidder Total Bid Specification Stone Products $10,093,000 DLH $10,346,550 Kadinger Marine Service $10,925,900 Holly Marine $11,125,850 Agency Report (AR) exh. A, Abstract of Bids. DLH became the apparent low eligible bidder after Specification Stone Products bid was rejected for reasons not relevant here. Upon review of DLHs bid package, the contracting officer discovered that DLHs bid was accompanied by a cover letter, which stated among other things, that [DLH] will only accept award of A, B, and C together. AR exh. B, Protesters Cover Letter (Mar. 18, 2003). This reference to A, B, and C was not elsewhere explained in the bid package.[1] Since Type C stone would not be purchased until the second option year, the contracting officer concluded that DLH had imposed a condition for award (that is, award of at least the base, first, and second option year requirements) that effectively limited the agencys rights under the options provision of the IFB which gives the agency the discretion to exercise or not exercise option year requirements. Consequently, the contracting officer determined that DLHs bid was nonresponsive. On June 25, the contracting officer awarded a contract to Holly Marine as the lowest responsive, responsible bidder.[2] This protest followed. DLH explains that the condition was included in its bid package because the firm wanted to inform the Corps of Engineers that DLHs bid was contingent upon one bidder being awarded all items to ensure that the items not be awarded piecemeal to multiple bidders. Protest at 5, 7; Protesters Comments at 5. Moreover, the protester insists that the condition was never intended to restrict the agencys discretion to exercise the option requirements set forth in the solicitation in any manner it chose. DLH contends that, in any event, the agency should have waived this condition as a minor informality in the interest of obtaining the most cost savings to the government. Protest at 4. All bidders must compete for sealed bid contracts on a common basis.