American Mining Services, LLC (W912WJ21B0022)

B-420138 Dec 03, 2021 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights American Mine Services, LLC (AMS), of Boulder, Colorado, protests the rejection of its bid, under invitation for bids (IFB) No. W912WJ21B0022, issued by the Department of the Army, United States Army Corps of Engineers (Corps), for service gates. The protester argues that the agency unreasonably rejected its bid. We deny the protest. View Decision   Decision Matter of: American Mine Services, LLC File: B-420138 Date: December 3, 2021 Evan Willeke, American Mine Services, LLC, for the protester. Deena G. Braunstein, Esq., and Jenna Gustafson, Esq., Department of the Army, for the agency. Young H. Cho, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency properly rejected bid as nonresponsive where the bid included language imposing conditions that limit the rights of the government under a standard Federal Acquisition Regulation clause incorporated by reference into the solicitation. DECISION American Mine Services, LLC (AMS), of Boulder, Colorado, protests the rejection of its bid, under invitation for bids (IFB) No. W912WJ21B0022, issued by the Department of the Army, United States Army Corps of Engineers (Corps), for service gates. The protester argues that the agency unreasonably rejected its bid. We deny the protest. BACKGROUND The IFB was issued on July 16, 2021, under Federal Acquisition Regulation (FAR) part 14 as a total small business set-aside, to furnish and install two new service gates at the Surry Mountain Dam in Surry, New Hampshire. Contracting Officer’s Statement/ Memorandum of Law (COS/MOL) at 1; Agency Report (AR), exh. A, IFB at 3, 14, 22.[1] Relevant here, the IFB incorporated by reference FAR clause 52.249-10, Default (Fixed-Price Construction). IFB at 24. Four timely bids were received and opened by the agency on August 24. COS/MOL at 1. AMS was the apparent low bidder. Id. In reviewing AMS’s bid, the agency found that AMS included the following provision under the “Clarification and Exceptions” section of its bid: For purposes of this bid, COVID-19 is considered a Force-Majeure Event along with any other similar disease, epidemic, or pandemic event. If any of the aforementioned events occur and affect the project, AMS reserves its rights for additional time. AR, exh. B, AMS Bid at 65. On August 30, the agency notified AMS that its bid had been rejected. AR, exh. D, Bid Rejection Letter at 87. The agency explained that, pursuant to section 14.404-2(d) of the FAR, AMS’s inclusion of the provision rendered AMS’s bid nonresponsive as failing to conform to the essential requirements of the solicitation. The agency informed AMS that the provision was a material difference in the terms and conditions set forth in the solicitation, and, thus the provision could not be waived. Id. Upon receiving notice of its bid rejection, AMS requested an opportunity to discuss the rejection of its bid and offered to remove the language. AR, exh. E, Email Chain Between Corps and AMS at 90. The Corps, however, responded that it could not allow AMS to amend its bid because it would be unfair to other bidders. Id. at 89. On September 7, AMS filed this protest. DISCUSSION AMS contends that the rejection of its bid by the Corps was unreasonable. The protester asserts that the provision added to its bid simply addresses the impact to a project from COVID‑19 or other similar disease or epidemic event. Protest at 3; Comments at 2. According to the protester, FAR clause 52.249-10, which the IFB incorporates by reference, also addresses these consequences. Protest at 3. As such, the added provision merely confirmed a protection offered to all bidders under that FAR clause, i.e., protecting a contractor’s ability to continue working on a project after a delay caused by “the force-majeure events of [the] COVID-19 pandemic.”[2] Id. AMS also contends that any variations between the FAR clause and its added provision were not material because the added language does not affect price, quantity, quality, or delivery. Comments at 5. According to the protester, the FAR allows for, and the agency should have allowed, the opportunity for AMS to remove the objectionable provision. Specifically, AMS argues that it should have been allowed to remove the provision under sections 14.404‑2(e) and 14.405 of the FAR.[3] Id. The Corps contends that the added provision modified and broadened the terms of FAR clause 52.249-10. COS/MOL at 2. The agency points out that the FAR clause lists epidemics and quarantine restrictions as possible causes of delay. The Corps contends that the added provision, however, broadens these terms because it includes COVID-19 and “any other similar disease.” Id. at 2-3.