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B-166255, MAY 27, 1969

B-166255 May 27, 1969
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AMENDMENT NO. 1 STATED IN PERTINENT PART THAT "CLAUSE 49 OF THE GENERAL PROVISIONS ENTITLED -GUARANTY- IS APPLICABLE TO THIS PROCUREMENT.'. PROVIDES THAT THE GUARANTY CLAUSE THERE SET OUT IS ONLY APPLICABLE IF SO PROVIDED ELSEWHERE IN THE CONTRACT. THE PURPOSE OF THE AMENDMENT WAS TO PROVIDE SPECIFICALLY FOR ITS INCLUSION. IT IS YOUR CONTENTION THAT YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD HAVE BEEN QUESTIONED BY THE CONTRACTING OFFICIALS AFTER YOUR BID WAS OPENED. WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE. IT IS A WELL-ESTABLISHED RULE THAT FAILURE TO ACKNOWLEDGE AN INVITATION AMENDMENT AS REQUIRED BY THE MANDATORY TERMS OF THE INVITATION MATERIALLY AFFECTING PRICE.

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B-166255, MAY 27, 1969

TO VICTOREEN INSTRUMENT DIVISION:

YOUR LETTER OF APRIL 30, 1969, PROTESTS AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. N00039-69-B-2018, ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND, AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE INVITATION AMENDMENT NO. 1 DATED FEBRUARY 6, 1969.

THE SUBJECT INVITATION REQUESTED BIDS ON 7,738 RADIACMETERS, DESCRIBED AS "QUARTZ-FIBRE, SELF-INDICATING, 1M-9) ( (PD," AND PROVIDED FOR A 50 PERCENT SMALL BUSINESS SET-ASIDE. AMENDMENT NO. 1 STATED IN PERTINENT PART THAT "CLAUSE 49 OF THE GENERAL PROVISIONS ENTITLED -GUARANTY- IS APPLICABLE TO THIS PROCUREMENT.' CLAUSE 49 OF THE GENERAL PROVISIONS, INCLUDED WITH THE INVITATION, PROVIDES THAT THE GUARANTY CLAUSE THERE SET OUT IS ONLY APPLICABLE IF SO PROVIDED ELSEWHERE IN THE CONTRACT. THE INVITATION AS ORIGINALLY ISSUED DID NOT PROVIDE FOR THE INCLUSION OF THE GUARANTY CLAUSE IN ANY RESULTING CONTRACT, AND THE PURPOSE OF THE AMENDMENT WAS TO PROVIDE SPECIFICALLY FOR ITS INCLUSION.

YOU STATE THAT YOU NEVER RECEIVED THE SUBJECT AMENDMENT, AS EVIDENCED BY YOUR STATEMENT TO THAT EFFECT ON PAGE 2 OF STANDARD FORM 33, ATTACHED TO YOUR BID, AND IT IS YOUR CONTENTION THAT YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD HAVE BEEN QUESTIONED BY THE CONTRACTING OFFICIALS AFTER YOUR BID WAS OPENED.

WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE. IT IS A WELL-ESTABLISHED RULE THAT FAILURE TO ACKNOWLEDGE AN INVITATION AMENDMENT AS REQUIRED BY THE MANDATORY TERMS OF THE INVITATION MATERIALLY AFFECTING PRICE, QUANTITY, OR QUALITY RENDERS A BID NONRESPONSIVE AND THEREFORE FOR REJECTION. SEE B-164014, MAY 28, 1968; 37 COMP. GEN. 785. THIS RULE IS NOT CHANGED BY THE FACT THAT THE BIDDER DID NOT RECEIVE THE UNACKNOWLEDGED AMENDMENT. 40 COMP. GEN. 126. THIS SEEMINGLY HARSH RULE IS NECESSARY BECAUSE OTHERWISE AN AWARD TO A BIDDER NOT ACKNOWLEDGING A MATERIAL AMENDMENT WOULD NOT BIND THAT BIDDER TO THE SAME CONTRACT TERMS BY WHICH OTHER BIDDERS WOULD BE BOUND. FURTHER, TO ALLOW ACKNOWLEDGMENT AFTER BIDS ARE OPENED WOULD GIVE THE BIDDER AN OPPORTUNITY TO VARY THE TERMS OF HIS BID AFTER OPENING TO THE PREJUDICE OF OTHER BIDDERS, A PRACTICE WHICH IS PROHIBITED BECAUSE IT WOULD IMPAIR THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

THERE WOULD SEEM TO BE LITTLE QUESTION THAT THE GUARANTY CLAUSEADDED BY AMENDMENT 1 IS MATERIAL AS IT IMPOSES AFFIRMATIVE DUTIES ON THE CONTRACTOR WHICH WERE NOT PREVIOUSLY REQUIRED BY THE INVITATION WHEREBY THE CONTRACTOR IS REQUIRED TO REPAIR OR REPLACE SUPPLIES DETERMINED TO BE DEFECTIVE DURING A STIPULATED TIME AFTER INSPECTION AND FINAL ACCEPTANCE OF SUCH SUPPLIES. CLEARLY, SUCH A PROVISION AFFECTS BOTH PRICE AND QUALITY. SEE, IN THIS REGARD, 46 COMP. GEN. 856.

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