Great Lakes Dredge & Dock Company, LLC

B-411207 Jun 08, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Great Lakes Dredge & Dock Company, LLC, (GLDD) of Oak Brook, Illinois, protests the cancellation of invitation for bids (IFB) No. W912BU-14-B-0002, issued by the Department of the Army, Corps of Engineers, for beachfill and sand dune construction on Absecon Island, New Jersey. GLDD contends that the Corps lacked a compelling reason to cancel the IFB. We deny the protest. We deny the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Great Lakes Dredge & Dock Company, LLC File: B-411207 Date: June 8, 2015 Paul R. Hurst, Esq., and Kendall R. Enyard, Esq., Steptoe & Johnson LLP, for the protester. Dana P. Friedman, Esq., and Maureen A. McAndrew, Esq., Department of the Army, for the agency. Pedro E. Briones, Esq., and Nora K. Adkins, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest of an agency’s cancellation of an invitation for bids after bid opening is denied where unforeseen litigation over the acquisition of property easements required for contract performance, and ensuing condemnation proceedings of an indeterminate duration, provided a compelling reason to cancel the solicitation. DECISION Great Lakes Dredge & Dock Company, LLC, (GLDD) of Oak Brook, Illinois, protests the cancellation of invitation for bids (IFB) No. W912BU-14-B-0002, issued by the Department of the Army, Corps of Engineers, for beachfill and sand dune construction on Absecon Island, New Jersey. GLDD contends that the Corps lacked a compelling reason to cancel the IFB. We deny the protest. BACKGROUND The procurement is part of a decades‑long joint project between the Corps and the State of New Jersey, Department of Environmental Protection (NJDEP), for hurricane and storm damage reduction on Absecon Island, an 8-mile long barrier island in Atlantic County, New Jersey, comprised of four coastal municipalities: Atlantic City, Ventnor City, Margate City, and the Borough of Longport. See Absecon Island Coastal Storm Risk Management, available at www.nap.usace. army.mil/Missions/CivilWorks/AbseconIslandStormDamageReduction.aspx. The project consists of berm and dune beachfill to be constructed along the oceanfront of the four municipalities. Id. The Atlantic City and most of the Ventnor City beachfill was completed in June 2004. See id. Under a new project partnership agreement to complete the remaining beachfill, NJDEP is responsible for acquiring the necessary real estate interests, and the Corps is responsible for construction costs.  Agency Report (AR) at 1-2. On September 15, 2014, the Philadelphia District of the Corps issued the IFB seeking a contractor to construct the remaining stretch of beachfill in Margate, Longport, and the southern portion of Ventnor. IFB at 1; IFB § 01 11 00, Summary of Work, at 1. The solicitation incorporated Federal Acquisition Regulation (FAR) clause 52.214-19, Contract Award-Sealed Bidding-Construction, which provides for award to the lowest-priced responsible bidder. IFB § 00 21 00-4. The IFB warned bidders that bids would not be opened unless the real estate issues had been resolved, and that there was no guarantee that the outstanding issues would be resolved or that a contract would be awarded. IFB at 3. On October 1, NJDEP filed administrative orders with the Atlantic County Clerk’s Office “taking” (i.e., seizing) perpetual easements and other property interests for specified oceanfront parcels in Margate in order to proceed with the project. See Margate v. United States Army Corps of Engineers, No. 14-cv-7303, at 5-8 (D.N.J. Jan. 15, 2015). Property interests over parcels in Longport were separately acquired through that borough’s exercise of the New Jersey Disaster Control Act, which grants municipal governing bodies the authority to seize property in order to restore or construct protective coastal barriers.[1] See Contracting Officer (CO) Statement at 2, citing N.J.S.A. App. A §§ 9-51.5--51.7. On October 14, NJDEP provided an “Authorization for Entry for Construction” to the Corps certifying that NJDEP had obtained sufficient title and real property interest over the required parcels in order for the Corps to begin construction. AR, Tab H, NJDEP Authorization for Entry for Constr., at 1. The authorization was executed by the administrator of NJDEP, as well as the assistant attorney general for NJDEP, who certified that NJDEP had the legal authority to grant the authorization. Id. Two firms, including GLDD, submitted bids in response to the IFB that were opened on October 28. CO Statement at 3. GLDD was the apparent low bidder.