Orion Construction Company, Inc., B-294014, June 30, 2004

B-294014 Jun 30, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Orion Construction Company, Inc. protests the award of a contract to Dorado Services, Inc. under invitation for bids (IFB) No. W9124C-04-B-0002, issued by the Department of the Army for demolition, framing, and roofing work for a building located at Fort Jackson, South Carolina. Orion essentially argues that the agency's partial award of two contract line items (CLINs) to Dorado was inconsistent with the IFB. We deny protest. View Decision B-294014, Orion Construction Company, Inc., June 30, 2004 Decision Matter of: Orion Construction Company, Inc. File: B-294014 Date: June 30, 2004 Thomas J. Kelleher, Jr., Esq., Smith, Currie & Hancock, for the protester. Maj. Gregory R. Bockin and Charles D. Shults, Esq., Department of the Army, for the agency. Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Where an invitation for bids (IFB) soliciting bids for multiple line items contains clauses that permit the government to accept any item or combination of items in the bid, the agency has the discretion to make a partial award of any combination unless the IFB elsewhere contains express language precluding such an award. DECISION Orion Construction Company, Inc. protests the award of a contract to Dorado Services, Inc. under invitation for bids (IFB) No. W9124C-04-B-0002, issued by the Department of the Army for demolition, framing, and roofing work for a building located at Fort Jackson, South Carolina. Orion essentially argues that the agency's partial award of two contract line items (CLINs) to Dorado was inconsistent with the IFB. We deny protest. The IFB was issued on February 16, 2004. The IFB identified five CLINs. The agency reports that because of the size of the roof to be replaced, the engineers were not certain that the projected funding would permit all the re-roofing to be performed. Therefore, the engineers divided the work into phases, which would give the agency the flexibility to award all or part of the work depending on the prices received. The CLINs as contained in the bid schedule reflect this approach, that is, each CLIN reflected a part of the roof requiring re-roofing. Agency Report, Tab 17, Contract Specialist's Statement, at 1. Several provisions of the solicitation advised bidders that the government reserved the right to award all, none, or a combination of the line items. First, block 10 of Standard Form 1442, the IFB cover sheet, stated that –[t]he Government reserves the right to award any, all, or any combination of line items.— Second, in section B, entitled –Supplies or Services and Prices,— the IFB repeated essentially the same language. Third, the solicitation incorporated the clause at Federal Acquisition Regulation 52.214-19, entitled –Contract Award-Sealed Bidding-Construction,— which provides that –[t]he Government may accept any item or combination of items, unless doing so is precluded by a restrictive limitation in the solicitation or bid.— IFB at 200. Five bids, including Orion's, were received by bid opening. Orion was the apparent low bidder for all five line items combined and also for CLIN 0001. However, based on the funding available for the project, the agency determined to award CLINs 0002 and 0005 first because the roof areas covered by these CLINs were leaking severely. Dorado was the low bidder for CLINs 0002 and 0005, and the Army awarded Dorado a contract for these two CLINs on April 26. Orion subsequently filed this protest with our Office. While not disputing that the agency lacked sufficient funds to award all of the line items, or that Dorado was the low bidder for CLINs 0002 and 0005, Orion nevertheless contends that it should have received the award because the solicitation established an intent to award CLIN 000l first and, therefore, Orion, as the low bidder on CLIN 0001, as well as the low bidder for the entire project, should have received an award. Where, as here, an IFB allows an agency to accept any item or combination of items, it has the discretion to make an award of less than all of the line items, unless the IFB contains express language precluding such an award. Fire Sec. Sys., Inc., B-284147, Feb. 23, 2000, 2000 CPD 31 at 3; Talbott Dev. Corp., B-220641, Feb. 11, 1986, 86-1 CPD 152 at 2; Granite State Mach. Co., Inc., B-199644, Nov. 26, 1980, 80-2 CPD 396 at 5. The IFB here contains no express language precluding a partial award and, in fact, the protester appears to be seeking a partial award for CLIN 0001. The protester cites two IFB provisions that it contends support its position that the agency was required by the terms of the IFB to award CLIN 0001 before any other CLIN.