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B-281465 1 (1999-02-10)

handle is hein.gao/gaocrptajgw0001 and id is 1 raw text is: oComptroller General of the United States Washington, D.C. 20548 Decision Matter of: Interstate Construction, Inc. File: B-281465 Date: February 10, 1999 Robert E. Thurbon, Esq., for the protester. Clark J. Hulce, Esq., Department of the Army, Corps of Engineers, for the agency. Susan K McAuliffe, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Bid imposing condition on performance is nonresponsive where it modifies material terms of the solicitation, limits contractor's liability to the government, and limits the rights of the government under the contract. DECISION Interstate Construction, Inc. protests the award of a contract to Kinley Construction Company under invitation for bids (IFB) No. DACA05-98-B-0026, issued by the Department of the Army, Corps of Engineers, Sacramento District, for the repair and upgrade of the jet fuel hydrant system and bulk fuel storage area at Beale Air Force Base, California. Interstate contends that Kinley's bid is nonresponsive, since it included a material condition on performance of the contract which may not be waived by the agency to make Kinley's bid responsive. We sustain the protest. The IFB, issued on August 12, 1998 and amended four times prior to the September 18 bid opening, sought bids for the repair and upgrade of the fuel hydrant system and fillstand. The solicitation's pricing schedule sought prices for seven basic items (Nos. 0001-0007) relating to repairs/upgrades at the Pumphouse No. 1 site, and two option items (Nos. 0008 and 0009) relating to repairs/upgrades at the bulk fuel storage area. IFB at 00010-5. Item No. 0009, relevant here and discussed more fully below, involves lowering the high-level shut-off valves on three bulk fuel storage tanks. Id. All major work items listed in the IFB (including all of the basic and option items in the pricing schedule) were to be included in a total lump-sum price for evaluation and award purposes. Id. at 00010-5, 01025-1, 00100-13, and 00100-14. Twelve bids were received by bid opening. Kinley submitted the apparent low bid (at $1,591,566) and Interstate submitted the apparent second low bid (at $1,649,867).

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