Retro Environmental Inc.

B-411457.3 Aug 19, 2015 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Retro Environmental, Inc., of Sykesville, Maryland, a small business, protests the cancellation of invitation for bids (IFB) No. W912K6-15-B-0001 by the Department of the Army for asbestos abatement services at the Maryland Air National Guard operational and training facility building at Martin State Airport in Baltimore, Maryland. Retro argues that the cancellation of the IFB is improper. We deny the protest. We deny the protest. View Decision Decision Matter of: Retro Environmental, Inc. File: B-411457.3 Date: August 19, 2015 Joseph C. Kovars, Esq., and James E. Edwards Jr., Esq., Ober, Kaler, Grimes & Shriver, for the protester. Maj. Jamal A. Rhinehardt, and Scott N. Flesch, Esq., Department of the Army, for the agency. Paul N. Wengert, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency lacked a compelling basis to cancel invitation for bids after bid opening and contract award is denied where contracting officer reasonably determined that solicitation contained an ambiguous specification that may have overstated that agency’s minimum requirement and thus limited competition. DECISION Retro Environmental, Inc., of Sykesville, Maryland, a small business, protests the cancellation of invitation for bids (IFB) No. W912K6-15-B-0001 by the Department of the Army for asbestos abatement services at the Maryland Air National Guard operational and training facility building at Martin State Airport in Baltimore, Maryland. Retro argues that the cancellation of the IFB is improper. We deny the protest. BACKGROUND The Army issued the solicitation on March 25, 2015, seeking bids to perform asbestos abatement services. IFB at 1 (Standard Form 33). On the announced bid opening date, April 9, the contracting officer conducted a public bid opening at which six bids were read. The bid from San Dow Construction, Inc. was $170,000, while three other bidders submitted lower prices. Contracting Officer’s Statement at 1. After the concluding the bid opening, the contracting officer realized that there had been a seventh bid, submitted by Retro on April 8, which had been left in the contracting officer’s office, unopened. Id. The contracting officer opened the bid and sent an e-mail to the other bidders, stating that a seventh bid, from Retro, had the lowest price of $104,700. Id. On April 24, the contracting officer awarded the contract to Retro. San Dow filed a protest with our Office the same day, arguing that other lower-priced bidders lacked required licenses, and that Retro’s bid was ineligible because the bid was delivered late, or was otherwise invalid because it had not been opened publicly. San Dow also argued that the other lower-priced bidders lacked the required license. During San Dow’s protest, the agency reviewed Retro’s bid, and concluded that it should have been rejected as nonresponsive because, the contracting officer explains, Retro had failed to submit an acceptable description of its “method on how the job would be accomplished.”[1] Contracting Officer’s Statement at 2. Specifically, the contracting officer calls attention to a handwritten notation at the bottom of Retro’s bid schedule, which stated simply “24 WORK DAYS.”[2] Id. Also during San Dow’s protest, the Army concluded that the IFB overstated the agency’s minimum needs by stating that “the contractor” had to be licensed to perform asbestos abatement by the State of Maryland, whereas the agency should have stated only that the firm actually performing the abatement work (whether prime contractor or subcontractor) was required to hold the state license. Id. On May 20, the contracting officer concluded that the flaw in the IFB provided a compelling reason to cancel the IFB, and announced that the agency would take corrective action by doing so. AR, Tab 12, Corrective Action Memorandum, at 2. Our Office subsequently dismissed San Dow’s protest as academic. Retro filed this protest on May 26, arguing that cancelation of the IFB was improper. Protest at 1. ANALYSIS Retro argues that it submitted the lowest bid, and that any error in the IFB does not provide a compelling reason to cancel the IFB because multiple bidders correctly inferred that a subcontractor license would be acceptable, and because Retro, which holds a license, was and would remain the lowest-priced bidder under the IFB, both as issued and as the agency proposes to revise it. Protest at 4. The Army argues that the circumstances here provide a compelling basis to cancel the IFB for two reasons. First, the restrictive terms of the IFB may have prevented competition by additional bidders that might have submitted a lower bid than Retro, but were discouraged by the apparent requirement that the license be in the prime contractor’s name. AR, at 8-9.