McGhee Construction, Inc., B-293239, February 5, 2004

B-293239 Feb 05, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Where the bid included a bid guarantee that stated that the penal sum amount was limited to 20 percent of the "Attached Bid" and the bid to which the bid guarantee was attached did not include prices for any line item. The bid guarantee was ambiguous concerning the amount of the bid guarantee. Was therefore nonresponsive. Bid opening was scheduled for 3 p.m. Facsimile bids were not authorized but facsimile bid modifications were. Bidders were informed that the evaluated bid price would be the sum of the bidder's price for the base bid. All Options will render the bid non-responsive.". McGhee included a completed bid guarantee which provided a penal sum amount of 20 percent of the bid price but which also stated that the penal sum of the bond was an amount not to exceed "20% of Attached Bid.". View Decision McGhee Construction, Inc., B-293239, February 5, 2004 DIGEST Attorneys DECISION McGhee Construction, Inc. protests the rejection of its low bid under invitation for bids (IFB) No. GS06P03GYC0030, issued by the General Services Administration (GSA) for construction services. We deny the protest. The IFB requested bids for construction services for the Federal Building and United States Courthouse in Sioux City, Iowa. The IFB included the "Notice of Price Evaluation Adjustment for Small Disadvantaged Business (SDB) Concerns" clause, Federal Acquisition Regulation (FAR) Sec. 52.219-23, and provided for a 10-percent preference for bids of SDB concerns. The IFB also required the submission of a bid guarantee in the amount of 20 percent of the bid amount. Bid opening was scheduled for 3 p.m., October 23, 2003. Facsimile bids were not authorized but facsimile bid modifications were. The IFB requested pricing for a number of contract line item numbers (CLIN), including a "base bid" for exterior and interior renovations, unit prices for various construction services (with identified estimated quantities), and a number of option for various services. Bidders were informed that the evaluated bid price would be the sum of the bidder's price for the base bid, extended unit prices, and all options. The IFB further stated that the "[f]ailure to furnish prices for the Base Bid, all individual Unit Prices, and all Options will render the bid non-responsive." IFB Schedule at 2. GSA received four bids by the October 23 bid opening time. McGhee submitted its bid to the agency on October 21; McGhee entered the phrase "No Bid" for every IFB CLIN. With its bid, McGhee included a completed bid guarantee which provided a penal sum amount of 20 percent of the bid price but which also stated that the penal sum of the bond was an amount not to exceed "20% of Attached Bid." On October 23, at 2:54 p.m. and 2:56 p.m. (prior to bid opening), McGhee submitted two facsimile modifications of its original bid; these bid modifications priced each CLIN. The facsimile transmission cover sheets for the bid modifications stated Please disregard previously submitted bid, we are modifying our bid via fax. Please see attached Bid Schedule. The bid modifications did not mention McGhee's bid guarantee. Because McGhee indicated that it was an SDB concern, it received the benefit of the 10 percent preference. As a result of the application of the SDB preference, McGhee's last bid modification was found to be the apparent low bid. GSA rejected McGhee's bid as nonresponsive because the original bid did not price each CLIN, as required. The agency concluded that because the original bid indicated "no bid" for each CLIN, the original bid package was actually not a bid, and that McGhee's facsimile bid modifications were in fact McGhee's bid. Because facsimile bids were not authorized by the IFB, GSA stated that McGhee's bid could not be considered. However, in response to the protest, citing our decision in Ulysses, Inc.; Orlotronics Corp., B-187345, B-187356, Dec. 6, 1976, 76-2 CPD Para. 464, GSA withdrew its determination that McGhee's original bid could not be modified by facsimile to provide prices for each CLIN. In that decision, we found that where, as here, a solicitation authorized the modification of bids by facsimile, a bidder properly may use a facsimile transmission to provide prices for CLINs for which the original bid did not contain prices but stated "no bid." The agency had an additional reason that it considered McGhee's bid to be nonresponsive.