B-173416, SEP 13, 1971

B-173416, SEP 13, 1971

BID PROTEST - NONRESPONSIVE BID - FAILURE TO ACKNOWLEDGE AMENDMENT DENIAL OF PROTEST ON BEHALF OF KING FISHER MARINE SERVICE, INC., AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE NEW ORLEANS DISTRICT, CORPS OF ENGINEERS, FOR MAINTENANCE DREDGING OF THE BAYOU BONFOUCA AND THE CHEFUNCTE (TCHEFUNCTE) RIVER, ST. TAMMANY PARISH, LA. PROTESTANT'S BID WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0001 TO THE SOLICITATION. SINCE THE BID FORM CONTAINS A PLACE FOR THE ACKNOWLEDGEMENT OF THE RECEIPT OF AMENDMENTS, SUCH RECEIPT SHOULD HAVE BEEN ACKNOWLEDGED. MOREOVER, SINCE THE AMENDMENT INCREASED THE COST OF PERFORMANCE BY $667, THE FAILURE TO ACKNOWLEDGE THE AMENDMENT MAY NOT BE WAIVED AS A MINOR IRREGULARITY. WHILE THE BIDDER MAY HAVE HAD THE PROVISIONS OF 40 U.S.C. 333 IN MIND WHEN HE COMPUTED THE BID PRICE, THE BID DID NOT REFLECT SUCH INTENTION, AND WAS THEREFORE NONRESPONSIVE. SUCH NONRESPONSIVENESS MAY NOT BE CURED AFTER BID OPENING BY THE BIDDER'S AGREEMENT TO BE BOUND BY THE AMENDMENTS.

TO HARRIS, COOK & BROWNING:

WE REFER TO YOUR LETTER OF JUNE 25, 1971, PROTESTING ON BEHALF OF KING FISHER MARINE SERVICE, INC., THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DACW29-71-B-0187, ISSUED BY THE NEW ORLEANS DISTRICT, UNITED STATES ARMY CORPS OF ENGINEERS. THE INVITATION COVERS MAINTENANCE DREDGING FOR THE BAYOU BONFOUCA AND THE CHEFUNCTE (TCHEFUNCTE) RIVER, ST. TAMMANY PARISH, LOUISIANA.

BIDS WERE OPENED ON MAY 26, 1971. KING FISHER WAS THE APPARENT LOW BIDDER WITH A BID PRICE OF $67,979. JAHNCKE SERVICES, INC., WAS SECOND LOW BIDDER WITH A BID PRICE OF $73,929. HOWEVER, BECAUSE KING FISHER HAD NOT ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 0001 TO THE INVITATION IN ITS BID, THE CONTRACTING OFFICER DETERMINED THAT FIRM'S BID TO BE NONRESPONSIVE. THE AMENDMENT CHANGED THE TITLE OF PARAGRAPH 25 OF THE GENERAL PROVISIONS OF THE CONTRACT FROM "CONTRACT WORK HOURS STANDARDS ACT - OVERTIME COMPENSATION (40 U.S.C. 327-330) (1965 APR)" TO "CONTRACT WORK HOURS AND SAFETY STANDARDS ACT - OVERTIME COMPENSATION (40 U.S.C. 327- 333)," AND ADDED THE STATEMENT THAT "THIS CONTRACT IS SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND TO THE APPLICABLE RULES, REGULATIONS, AND INTERPRETATIONS OF THE SECRETARY OF LABOR." SECTION 333 OF 40 U.S.C. PROVIDES THAT THE REQUIREMENTS THEREIN "SHALL BE A CONDITION OF EACH CONTRACT WHICH IS ENTERED INTO." IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE ADDITIONAL SAFETY REQUIREMENTS IMPOSED BY THE AMENDMENT, AS A RESULT OF THE STATUTORY CHANGE, WOULD INCREASE THE COST OF PERFORMING THE CONTRACT BY $667.

YOU CONTEND THAT BECAUSE AMENDMENT NO. 0001 WAS ATTACHED TO AND INSERTED IN THE INVITATION AS ORIGINALLY SENT TO KING FISHER, THE AMENDMENT BECAME A PART OF THE ORIGINAL INVITATION AND AS SUCH DID NOT CONSTITUTE AN AMENDMENT WHICH REQUIRED AN ACKNOWLEDGMENT OF RECEIPT. ALTHOUGH THE INVITATION WAS ISSUED ON MAY 6, 1971, AND THE AMENDMENT WAS ISSUED ON MAY 11, BOTH WERE SENT TOGETHER TO KING FISHER BECAUSE THAT FIRM DID NOT REQUEST A COPY OF THE INVITATION UNTIL APPROXIMATELY MAY 10. YOU FURTHER CONTEND THAT EVEN IF THE AMENDMENT WAS SUCH AS TO HAVE REQUIRED ACKNOWLEDGMENT, FAILURE TO ACKNOWLEDGE MAY BE WAIVED AS A MINOR IRREGULARITY UNDER PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), BECAUSE THE AMENDMENT DID NOT AFFECT THE PRICE BID UNDER THE INVITATION. THIS IS SO, IT IS CONTENDED, BECAUSE THE PROVISIONS OF 40 U.S.C. 333, AS A MATTER OF LAW, BECAME A PART OF THE CONTRACT AND WERE, THEREFORE, WITHIN THE CONTEMPLATION OF THE LOW BIDDER WHEN ITS BID PRICE WAS COMPUTED.

UNDER THE RECORD BEFORE US, WE ARE UNABLE TO AGREE WITH THE POSITION THAT WHEN THE TERMS OF AN INVITATION ARE CHANGED BY AMENDMENT - STATING THAT FAILURE TO ACKNOWLEDGE ITS RECEIPT BEFORE BID OPENING MAY RESULT IN THE REJECTION OF THAT BIDDER'S OFFER - THAT SUCH AMENDMENT NEED OR NEED NOT BE ACKNOWLEDGED DEPENDING ON THE MANNER IN WHICH IT IS FORWARDED TO THE BIDDER. THE BID FORM CONTAINS A PLACE FOR THE ACKNOWLEDGMENT OF THE RECEIPT OF AMENDMENTS TO THE INVITATION, AND WE BELIEVE THAT IN THE PRESENT INSTANCE RECEIPT OF THIS AMENDMENT SHOULD HAVE BEEN ACKNOWLEDGED ACCORDINGLY. WITHOUT SUCH ACKNOWLEDGMENT, THE BIDDER HAS AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY COMING FORWARD WITH EVIDENCE OUTSIDE THE BID THAT THE AMENDMENT WAS CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. GENERALLY, STATEMENTS MADE AFTER BID OPENING WHICH WOULD MAKE RESPONSIVE AN OTHERWISE NONRESPONSIVE BID MUST BE DISREGARDED IN ORDER TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. SEE B 170162, AUGUST 17, 1970. MOREOVER, SINCE THE AMENDMENT WHICH KING FISHER FAILED TO ACKNOWLEDGE WOULD INCREASE THE COST OF PERFORMANCE BY $667, THE FAILURE TO ACKNOWLEDGE THE AMENDMENT MAY NOT BE WAIVED AS A MINOR IRREGULARITY. 44 COMP. GEN. 753 (1965).

YOU MAINTAIN THAT PRICE WAS IN NO WAY AFFECTED BECAUSE, AS A MATTER OF LAW, THE PROVISIONS OF 40 U.S.C. 333 BECAME PART OF THE CONTRACT AND WERE, THEREFORE, WITHIN THE CONTEMPLATION OF THE BIDDER WHEN IT COMPUTED ITS BID PRICE. HOWEVER, WHILE THE BIDDER MAY HAVE HAD THE TERMS OF THE STATUTE IN MIND WHEN IT COMPUTED THE BID PRICE, THE BID DID NOT REFLECT SUCH INTENTION AND, FOR THAT REASON, WAS NONRESPONSIVE. 48 COMP. GEN. 593, 600 -601 (1969); 48 ID. 171 (1968); 47 ID. 682 (1968); B-169414, AUGUST 4, 1970. SUCH NONRESPONSIVENESS MAY NOT BE CURED AFTER BID OPENING BY THE BIDDER'S AGREEMENT TO BE BOUND BY THE TERMS OF THE AMENDMENT WHICH ADDED THE SAFETY REQUIREMENTS NOT INCLUDED IN ITS BID.

ACCORDINGLY, WE CONCLUDE THAT THE CONTRACTING OFFICER WAS CORRECT IN FINDING THE BID OF KING FISHER TO BE NONRESPONSIVE. THE PROTEST IS THEREFORE DENIED.