McKinley Construction & Excavating, B-295547, March 3, 2005

B-295547 Mar 03, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights McKinley Construction & Excavating protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. IN-NRCS-2003, issued by the Department of Agriculture for construction work on the Goose Pond Phase 2 wetland restoration project. We deny the protest. View Decision B-295547, McKinley Construction & Excavating, March 3, 2005 Decision Matter of: McKinley Construction & Excavating File: B-295547 Date: March 3, 2005 Edwin J. Broecker, Esq., Sommer Barnard Attorneys, PC, for the protester. Samar A. Shams, Esq., Department of Agriculture, 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 Bid that acknowledges all amendments to an invitation for bids, but which contains only the original version of the bid schedule, which was modified by an amendment to increase the footage of pipe to be provided, is nonresponsive because the bid is ambiguous regarding whether the bidder intends to be bound to the original or amended quantity. DECISION McKinley Construction & Excavating protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. IN-NRCS-2003, issued by the Department of Agriculture for construction work on the Goose Pond Phase 2 wetland restoration project. We deny the protest. Issued on October 12, 2004, the IFB solicited bids for an on-site contractor to perform construction activities on nine separate wetland restoration units. The IFB contained a bid schedule calling for bids on 27 items corresponding to the construction activities identified in the specifications. The IFB provided that award would be based on the aggregate of all items. Prior to bid opening, the agency issued two amendments to the solicitation. This protest concerns amendment No. 1, which changed the type of pipe to be used and included a revised bid schedule in which the unit quantity for line item No. 16, 12-inch diameter surface water pipe, was increased. [1] On November, 17, five timely bids were received in response to the IFB, and McKinley was the apparent low bidder at a price of964,858.52. The next low bid was $1,368,947.70 and the government estimate was $1,141,834.65. While examining the bids, the contracting officer noted that McKinley had made some mathematical errors and also discovered that, while McKinley had acknowledged all amendments, it submitted its bid using the wrong bid schedule. [2] Specifically, McKinley used the original bid schedule that listed the quantity for line item No. 16 as 218 lineal feet, instead of the revised bid schedule of amendment No. 1 which increased the quantity to 394 lineal feet. As a result, McKinley appeared to have based its bid on the wrong quantity for line item No. 16. On November 30, the protester was advised that it had submitted the wrong bid schedule and had made several mathematical errors in its bid. The protester subsequently submitted the revised bid schedule with the mathematical errors corrected and with the correct quantity for line item No. 16. On December 6, the protester was notified both orally and by letter that its bid had been rejected as nonresponsive. McKinley filed an agency-level protest on December 13, which was denied by the agency on December 16. McKinley filed this protest with our Office on December 16. The protester contends that the agency's rejection of its bid as nonresponsive was improper because the firm's use of the original schedule, which did not include the additional units of piping, constituted a minor informality that could be easily identified and corrected. The protester states that its bid specifically acknowledged all amendments, including amendment No. 1, and thus acknowledged that the firm was aware of, and would be bound by, the amendment, including the increase in the quantity for line item No. 16. The protester also argues that its failure to use the revised bid schedule was caused by the agency's failure to clearly indicate on the face of the revised bid schedule that the schedule had, in fact, been revised and maintains that the revised bid schedule did not clearly and unequivocally communicate the changes required by amendment No. 1. [3] Generally, where a bidder does not submit its price on a revised bid schedule listing an increased requirement, but instead submits its bid on the original schedule, the mere acknowledgment of the amendment containing the revised bid schedule is not sufficient to bind a bidder to provide the increased quantity because it is not clear that the bidder has committed itself to provide the additional quantity for the price set forth in the bid. See Harvey Honore Constr. Co., Inc. , B-262071.2, Jan.