B-176479, DEC 4, 1972

B-176479, DEC 4, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT DECISION DENYING THE PROTEST OF WHITE PLAINS ELECTRICAL SUPPLY CO., INC., AGAINST AWARD OF A CONTRACT TO SIERRA SWITCHBOARD COMPANY UNDER AN IFB ISSUED BY THE AMES RESEARCH CENTER, NASA, MOFFETT FIELD, CAL. THE CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT'S BID WAS NON RESPONSIVE BECAUSE HE DID NOT ACKNOWLEDGE AN AMENDMENT CANNOT BE OVERTURNED BECAUSE THE PROTESTANT'S BID DID NOT INDICATE RECEIPT OF THIS AMENDMENT AND THE CONTRACTING OFFICER'S DETERMINATION THAT THE AMENDMENT SUBSTANTIVELY CHANGED THE ORIGINAL REQUIREMENT AND THEREFORE HAD A SIGNIFICANT IMPACT ON THE PRICE AND TECHNICAL ASPECTS OF THE SOLICITATION IS A MATTER WITHIN NASA'S EXPERTISE.

TO WHITE PLAINS ELECTRICAL SUPPLY CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX MESSAGE OF JULY 11, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF CONTRACT NAS2 7146 TO THE SIERRA SWITCHBOARD COMPANY UNDER INVITATION FOR BIDS (IFB) NO. 2- 18167, ITEM 2, ISSUED BY THE AMES RESEARCH CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MOFFETT FIELD, CALIFORNIA.

YOU ALLEGE THAT YOU WERE LOW BIDDER UNDER THIS IFB AND THAT YOU WERE IMPROPERLY DENIED AWARD OF THE CONTRACT BECAUSE OF YOUR FAILURE TO INSPECT THE END-USE SITE AND TO VERIFY ALL MEASUREMENTS. IT IS YOUR POSITION THAT A SITE VISIT IS NECESSARY ONLY AFTER AWARD. THE DIRECTOR OF PROCUREMENT, NASA, AGREES THAT THE SOLICITATION CLAUSES APPLICABLE TO SITE VISITS ARE AMBIGUOUS AND THAT, THEREFORE, YOUR INTERPRETATION MUST PREVAIL.

THE CONTRACTING OFFICER, NEVERTHELESS, DETERMINED THAT YOUR LOW BID WAS NONRESPONSIVE DUE TO THE FAILURE TO ACKNOWLEDGE AN AMENDMENT WHICH MATERIALLY AFFECTED THE SOLICITATION REQUIREMENTS. AMENDMENT NO. 1 PROVIDED AS FOLLOWS:

"1.4 POTHEADS MUST BE PROVIDED FOR ALL TRANSFORMERS, PRIMARY CONNECTIONS AND ALL SWITCHGEAR.

"3.2.A ALL SWITCHGEAR SHALL HAVE THREE CURRENT TRANSFORMERS, THREE PHASE RELAYS AND ONE GROUND RELAY FOR EACH FEEDER. SWITCHGEAR FOR 1 2A1 REQUIRES TWO SETS OF CT'S RELAYS AND POTHEADS FOR TWO FEEDERS."

THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1, AS REQUIRED, COULD NOT BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY SINCE THAT AMENDMENT REQUIRED CHANGES WHICH "WERE SUBSTANTIVE CHANGES TO THE ORIGINAL REQUIREMENT WHICH WOULD HAVE A SIGNIFICANT IMPACT ON PRICE AND TECHNICAL ASPECTS OF THE SWITCHGEAR."

PARAGRAPH 4 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES THAT RECEIPT OF AN AMENDMENT MUST BE ACKNOWLEDGED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS. ACKNOWLEDGMENT MAY BE EFFECTED "(A) BY SIGNING AND RETURNING THE AMENDMENT, (B) ON THE REVERSE OF STANDARD FORM 33, OR (C) BY LETTER OR TELEGRAM."

PURSUANT TO NASA PROCUREMENT REGULATION 2.405 THE CONTRACTING OFFICER MAY WAIVE ANY MINOR INFORMALITY OR IRREGULARITY IN BIDS. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"(IV) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF -

(A) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BID AND THE BIDDER SUBMITTED A BID THEREON, OR

(B) THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON, OR THE RELATIVE STANDING OF BIDDERS, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE NASA INSTALLATION."

THE CONTRACTING OFFICER CONCLUDED THAT THE FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1 COULD NOT BE WAIVED AS A MINOR INFORMALITY BECAUSE IT DID NOT COME WITHIN THE EXCEPTIONS IN SECTION 2.405(IV)(A) OR (B). SINCE THE BID RECEIVED DID NOT INDICATE RECEIPT OF THE AMENDMENT AND SINCE THE CONTRACTING OFFICER'S DETERMINATION THAT THE EFFECT OF THE AMENDMENT ON PRICE AND QUALITY IS SIGNIFICANT IS A DETERMINATION OF A TECHNICAL NATURE WITHIN NASA'S EXPERTISE, WE PERCEIVE NO BASIS FOR OVERTURNING THE DECISION OF THE CONTRACTING OFFICER DECLARING YOUR BID NONRESPONSIVE AND AWARDING THE CONTRACT TO THE NEXT LOW BIDDER. B 167783, DECEMBER 8, 1969.

WHILE IT IS REGRETTABLE THAT YOU WERE MISINFORMED THAT NO AWARD HAD BEEN MADE ON JULY 10TH AND, LATER, THAT YOUR BID HAD BEEN REJECTED FOR FAILURE TO MAKE A SITE VISIT, THOSE EVENTS ARE NOT SUFFICIENT TO ALTER THE VALIDITY OF THE DETERMINATION THAT YOUR BID WAS, IN FACT, NONRESPONSIVE BECAUSE OF YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1.

ACCORDINGLY, THE PROTEST IS DENIED.