B-298835, Tessa Structures, LLC, December 14, 2006

B-298835 Dec 14, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Tessa Structures, LLC protests the award of a contract to Fort Myer Construction Co. under invitation for bids (IFB) No. DTFH71-06-B-00014, issued by the Department of Transportation, Federal Highway Administration (FHWA), for bridge-related repairs. Tessa maintains that the agency improperly rejected its bid as nonresponsive. We sustain the protest. View Decision B-298835, Tessa Structures, LLC, December 14, 2006 Decision Matter of: Tessa Structures, LLC File: B-298835 Date: December 14, 2006 Raymond J. Sherbill, Esq., and Stuart A. Schwager, Esq., Ridberg, Sherbill & Aronson LLP, for the protester. Julia L. Perry, Esq., Federal Highway Administration, and Kenneth Dodds, Esq., Small Business Administration, for the agencies. Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency's rejection of protester's bid based on determination that protester could not perform in the number of days specified in its bid constituted a finding of nonresponsibility--rather than one of nonresponsiveness, as characterized by the agency--which, because protester was a small business, had to be referred to Small Business Administration for certificate of competency review. DECISION Tessa Structures, LLC protests the award of a contract to Fort Myer Construction Co. under invitation for bids (IFB) No. DTFH71-06-B-00014, issued by the Department of Transportation, Federal Highway Administration (FHWA), for bridge'related repairs. Tessa maintains that the agency improperly rejected its bid as nonresponsive. We sustain the protest. The IFB, issued on May 26, 2006, contemplated the award of a fixed-price contract for construction and painting on three bridges on the George Washington Memorial Parkway in Washington, D.C. and Arlington, Virginia. The IFB stated that award would be based on the lowest total project price, which would be the sum of the bid price and the contract administrative costs associated with the length of the performance period stated in the bid ($2,200 per calendar day bid). In this regard, the bid schedule included a summary page on which bidders were to state the number of calendar days it would take to complete the work starting from the notice to proceed, or from the date stated in the notice to proceed. The IFB stated that the performance period could not exceed 305 days, but the IFB did not specify a minimum number of days. The IFB also informed bidders that the performance period calculation should take into account work limitations found in the solicitation, such as holidays, weekends, rush hours, night work, and no-work periods, and weather sensitive items, such as ambient air temperature requirements, minimum surface temperature requirements, and specific planting seasons. Finally, the IFB stated that cleaning and painting operations--the last work to be performed--could not be performed between January 1 and April 1, 2007. Three bids were received by the July 13 opening date. Tessa's evaluated price of $2,542,730--based on a bid of $2,278,730 and a performance period of 120 days--was the lowest, and FortMyer's evaluated price of $2,546,430--based on a bid of $1,996,430 and a performance period of 250 days--was second lowest. (The third bidder's evaluated price was $3,024,415, based on a bid price of $2,386,415 and a performance period of 290 days.) By letter dated July 21, the agency informed Tessa that it was –very concerned— with the 120-day performance period it had submitted in its bid. Protest, exh. 2. The letter noted that the other bidders and the government estimate used longer performance periods, that the heavy volume of traffic on the highway would limit daily construction time, and that the construction limitations contained in the solicitation would be strictly enforced. The letter requested that Tessa submit a construction schedule and a written explanation of how it expected to complete all work within the 120-day time period. Id. Tessa responded by providing the agency with its preliminary critical path method (CPM) schedule, as well as a list of some of the assumptions the firm had made in creating the schedule. One of those assumptions was that the firm would start performance on August 28, and thus be finished by December 25, 120 days later. Protest, exh. 3. By letter dated August 3, the agency informed Tessa that its August 28 start date was contrary to the requirements of the IFB, since the performance period –starts with the [n]otice to [p]roceed,— which could occur as late as 104 days after bid opening, that is, October 24. Protest, exh. 4, at 1. According to the agency, Tessa should have used this date as the start date, not August 28.