United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Cusack’s Masonry Restoration, Inc. 

File: B-407375

Date: November 29, 2012

Stephen A. Hilger, Esq., Hilger Hammond, for the protester.

Gary W. Segrest, Esq., Department of the Army, for the agency.

Gary R. Allen, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

An agency properly rejected a bid as nonresponsive where the bidder provided for 

completion of performance within 350 days after notice to proceed which would not 

satisfy the requirement that performance be completed by August 31, 2013.

DECISION

Cusack’s Masonry Restoration, Inc., of Hubbardston, Michigan, protests the 

rejection of its low bid as nonresponsive under invitation for bids (IFB) No. W911XK12-B-0006, issued by the Department of the Army, Corps of Engineers, for 

construction services at the agency’s Sault Ste. Marie, Michigan facility.

We deny the protest.

BACKGROUND

The IFB, issued on August 1, 2012, provided for the performance of various 

construction services. Block 11 of the standard form 1442 contains the following:

The Contractor shall begin performance within 10 calendar days 

and complete it within ___ calendar days after receiving __ award, 

X notice to proceed. This performance period is X mandatory, __ 

negotiable. (See 52.211-10 Alt.

IFB at 1. The IFB incorporated the framework of Federal Acquisition Regulation 

(FAR) clause 52.211-10, Alternate 1, stating:

)
Page 2 B-407375 

The Contractor shall be required to (a) commence work under this 

contract within 10 calendar days after the date the Contractor 

receives the notice to proceed, (b) prosecute the work diligently, 

and (c) complete the entire work ready for use not later than 31 

August 2013.

IFB at 37. This clause also informed bidders that the completion date was based 

upon the assumption that the successful bidder would receive the notice to proceed 

by October 15, 2012, and that if the notice to proceed was received after October 

15, the completion date would be extended by the number of days that the notice 

was delayed. Id. On August 31, the Corps amended the IFB to, among other 

things, extend the bid opening date to September 6. IFB amend. 1 at 1. In 

response to questions from prospective bidders with respect to IFB’s completion 

date, the Corps stated that award was scheduled to be made no later than 

September 30, 2012. See Agency Report (AR), Tab E, Question/Answer No. 11 

at 3.

The protester submitted the lowest of four bids by the September 6 bid opening 

date. In block 11 of its bid, the protester inserted the number “350” as the number 

of days that it would take to complete performance after receiving a notice to

proceed. AR, Tab G, Protester’s Bid, at 1. Because the protester did not 

unequivocally agree to complete performance by August 31, 2013, as required by 

the IFB, the contracting officer rejected the protester’s bid as nonresponsive. AR, 

Tab K, Corps Letter to Protester, Sept. 11, 2012; Contracting Officer’s (CO) 

Statement at 2. Award of a contract was made to Fuel Tank Maintenance Co., of 

Cookeville, Tennessee, on September 18.

This protest followed.

DISCUSSION

The protester contends that its bid is responsive, because it was consistent with 

completing the project by the required August 31 completion date. Comments at 4. 

The protester argues that, from its point of view, the project “basically ran from 

August 31, 2012 [the effective date of IFB amendment 1] through August 31, 2013, 

which essentially is 365 days.” Therefore, according to the protester, it actually bid 

a shorter performance period than that required by the IFB. Id. at 5.

To be responsive, a bid, as submitted, must comply in all material aspects with the 

terms of the IFB. Northwest Pesticide Enterprises, Inc., B-235982, Sept. 28, 1989, 

89-2 CPD ¶ 284 at 2. As a general rule, a bid must be rejected if it modifies 

material requirements of the IFB. FAR § 14.404-2(d) (2012); Red John’s Stone, 

Inc., B-280974, Dec. 14, 1998, 98-2 CPD ¶ 135 at 4. The performance schedule is 

a material requirement, and a bid that takes exception to the performance schedule 

is nonresponsive. Northwest Pesticide Enterprises, Inc., supra.
Page 3 B-407375 

Here, the record shows that the protester did not unequivocally promise to complete 

performance of the project by the required due date. Rather, the protester provided 

that it would complete the project within 350 days after receipt of notice to proceed. 

Under this qualification, the agency would have had to provide notice to proceed by 

September 15 to ensure that the protester’s 350 day performance period would be 

complete by August 31, 2013. Here, award was not made until September 18. In 

any event, the solicitation reserved to the agency the right to provide notice to 

proceed no later than October 15, 2012, and to expect completion of the project by 

August 31, 2013.1

There is no merit to the protester’s contention that it actually provided a shorter 

performance period than was required. This is based upon the protester’s unilateral 

view that the IFB provided for a 365 day contract period, which it calculated from the 

fact that IFB amendment 1 had an “effective date” of August 31, 2012. Protest at 2. 

The effective date of the IFB amendment has no relevance to the required 

performance period. It merely denotes when the amendment was issued and 

became effective. The required completion date is established by the plain 

language of block 11 and FAR clause 52.211-10, alternate 1, which clearly states

that the project must be completed by August 31, 2013, unless the agency’s notice 

to proceed date is later than October 15, 2012.2

 IFB at 1, 37.

Because the protester did not promise to complete the project by August 31, 2013, 

as required by the IFB, its bid is nonresponsive and was required to be rejected.

The protest is denied.

Lynn H. Gibson

General Counsel

 1 There are 320 calendar days between October 15, 2012 and August 31, 2013.

2 We do not agree with the protester that the IFB was ambiguous with respect to the 

required date for completing the project. In any event, to the extent that the 

protester challenges the terms of the IFB, its protest is untimely. Our Bid Protest 

Regulations require challenges to alleged apparent solicitation improprieties to be 

filed prior to bid opening. 4 C.F.R. § 21.2(a)(1) (2012).