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B-156631, MAY 17, 1965

B-156631 May 17, 1965
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TO THE HONORABLE SECRETARY OF THE INTERIOR: THIS IS IN REPLY TO A LETTER DATED APRIL 23. HAS REGISTERED A PROTEST AGAINST THE PROPOSED AWARD FOR THE REASONS THAT THE LOW BIDDER DID NOT ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 3 UNTIL AFTER THE TIME SET FOR BID OPENING AND THE AMOUNT OF THE BID WAS NOT WRITTEN OUT IN WORDS AS PROVIDED FOR IN THE SUBJECT INVITATION. ALL WORK TO BE DONE WAS PLAINLY SHOWN ON THE PLANS AND DESCRIBED IN THE SPECIFICATIONS AND IT WOULD NOT HAVE BEEN NECESSARY TO REDESCRIBE IT ON THE BID FORM. WAS SHOWN IN DETAIL ON THE PLANS AND DESCRIBED IN THE SPECIFICATIONS AND NO REFERENCE WAS MADE TO EXCLUSION OF ANY PORTION OF THE WORK EXCEPT THE ALTERNATE BUILDING ADDITION. WOULD HAVE THE EFFECT OF REDUCING THE PRICE A NEGLIGIBLE AMOUNT.

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B-156631, MAY 17, 1965

TO THE HONORABLE SECRETARY OF THE INTERIOR:

THIS IS IN REPLY TO A LETTER DATED APRIL 23, 1965, FROM THE ASSISTANT DIRECTOR, DESIGN AND CONSTRUCTION, YOUR REFERENCE D52-DCE, REQUESTING OUR VIEWS AS TO THE PROPRIETY OF AWARDING A CONTRACT FOR THE CONSTRUCTION OF A UNITED STATES PARK POLICE SUBSTATION TO THE WEISS CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS NO. 2917.

STAUFFER CONSTRUCTION COMPANY, INCORPORATED, THE SECOND LOW BIDDER, HAS REGISTERED A PROTEST AGAINST THE PROPOSED AWARD FOR THE REASONS THAT THE LOW BIDDER DID NOT ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 3 UNTIL AFTER THE TIME SET FOR BID OPENING AND THE AMOUNT OF THE BID WAS NOT WRITTEN OUT IN WORDS AS PROVIDED FOR IN THE SUBJECT INVITATION. AS ORIGINALLY WRITTEN THE INVITATION CALLED FOR A LUMP SUM BASE BID FOR THE FOLLOWS:

"U.S. PARK POLICE SUBSTATION BUILDING, EXCLUDING ALTERNATE ADDITION, 44 CAR PARKING AREA, FOOT BRIDGE, ACCESS WALKS AND PATIO; AND COMPLETE UTILITIES.'

ADDENDUM NO. 3, ITEM 2 CHANGED THE ABOVE LANGUAGE TO READ AS FOLLOWS:

"U.S. PARK POLICE SUBSTATION BUILDING INCLUDING 44 CAR PARKING AREA, FOOT BRIDGE, ACCESS WALKS AND PATIO, COMPLETE UTILITIES, BUT EXCLUDING ALTERNATE ADDITION.'

IN HIS LETTER DATED APRIL 21, 1965, THE CONTRACTING OFFICER STATES:

"ITEM 2, ADDENDUM NO. 3 CORRECTED A GRAMMATICAL ERROR IN THE DESCRIPTION OF THE LUMP SUM BASE BID ON THE BID FORM. HOWEVER, ALL WORK TO BE DONE WAS PLAINLY SHOWN ON THE PLANS AND DESCRIBED IN THE SPECIFICATIONS AND IT WOULD NOT HAVE BEEN NECESSARY TO REDESCRIBE IT ON THE BID FORM. SECTION 1, PARAGRAPH 1-10 OF THE SPECIFICATIONS EXPLAINS THE SCOPE OF THE BASE BID BY DESCRIBING IT AS FOLLOWS: "CONSTRUCTION OF THE MAIN UNIT OF THE POLICE SUBSTATION BUILDING WITH NECESSARY UTILITIES; PARKING AREAS AND ACCESS ROADS; FOOT BRIDGE WITH CONNECTING WALK AND PATIO.' ALL WORK, INCLUDING ALTERNATE BUILDING ADDITION, WAS SHOWN IN DETAIL ON THE PLANS AND DESCRIBED IN THE SPECIFICATIONS AND NO REFERENCE WAS MADE TO EXCLUSION OF ANY PORTION OF THE WORK EXCEPT THE ALTERNATE BUILDING ADDITION.

"ANALYSIS OF THE BIDS INDICATE THAT THE BIDDER DID, IN FACT, TAKE INTO ACCOUNT ALL ITEMS OF THE BASE BID DESCRIBED IN SECTION 1. IF HE HAD MISINTERPRETED THE BASE BID AND EXCLUDED THE 44 CAR PARKING AREA, FOOT BRIDGE, ACCESS WALKS AND PATIO AND COMPLETE UTILITIES FROM THE BASE BID, CONSISTING OF AN ESTIMATED TOTAL OF $45,000.00, IT WOULD BE REFLECTED IN HIS TOTAL BID PRICE BY A VERY MUCH LARGER SPREAD BETWEEN HIS BID AND THE OTHERS SUBMITTED.

"ITEM 3 OF THE ADDENDUM, REDUCING THE THICKNESS OF THE FLAGSTONE, WOULD HAVE THE EFFECT OF REDUCING THE PRICE A NEGLIGIBLE AMOUNT, IS INCONSEQUENTIAL AND WOULD NOT HAVE AFFECTED WEISS CONSTRUCTION, INC-S. POSITION AS LOW BIDDER.'

QUESTIONS RELATING TO THE EFFECT OF A BIDDER'S FAILURE TO TIMELY ACKNOWLEDGE RECEIPT OF AN ADDENDUM HAVE BEEN BEFORE OUR OFFICE ON NUMEROUS OCCASIONS. AS POINTED OUT IN 37 COMP. GEN. 785, AN ADDENDUM WHICH AFFECTS EITHER THE PRICE, QUALITY OR QUANTITY OF THE ITEM BEING PROCURED MUST BE ACKNOWLEDGED PRIOR TO THE TIME SET FOR BID OPENING. THIS RULE IS PREDICATED UPON THE PREMISE THAT THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL ASPECT OF AN INVITATION IS PREJUDICIAL TO OTHER BIDDERS AND CONTRARY TO THE STATUTES GOVERNING PUBLIC PROCUREMENT. B-131796, JUNE 14, 1957.

INSOFAR AS ITEM 2 OF THE ADDENDUM IS CONCERNED, WE NEED ONLY POINT OUT THAT IF AN ADDENDUM MERELY MAKES A CHANGE IN GRAMMAR WHICH WOULD NOT OTHERWISE ALTER A BIDDER'S OBLIGATION TO PERFORM, ITS ACKNOWLEDGMENT IS NOT MATERIAL AND A BID SHOULD NOT BE DISREGARDED FOR THIS REASON ALONE.

IF A REDUCTION IN THE FLAGSTONE THICKNESS WOULD HAVE THE EFFECT ONLY OF REDUCING PRICES NEGLIGIBLY OTHER BIDDERS WOULD NOT BE IN A POSITION TO CLAIM PREJUDICE. IN A SIMILAR CASE REPORTED IN 41 COMP. GEN. 550, WE HELD THAT IT WAS PROPER TO WAIVE THE FAILURE TO ACKNOWLEDGE AN ADDENDUM WHICH DECREASED THE COST OF PERFORMANCE BY A NEGLIGIBLE AMOUNT. AMONG OTHER THINGS WE STATED:

"* * * INDEED, IF WE ASSUME THAT THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE ADDENDUM WAS DUE TO IGNORANCE OF ITS EXISTENCE, THEN HIS BID PRICE WOULD NOT REFLECT THE LESSENED REQUIREMENTS OF THE SPECIFICATIONS, AND THEREFORE, HIS FAILURE TO ACKNOWLEDGE WOULD ONLY BE PREJUDICIAL TO HIS COMPETITIVE POSITION AND EVEN POSSIBLY BENEFICIAL TO THE POSITION OF THE OTHER BIDDERS.'

WE THINK THAT THE ABOVE LANGUAGE IS APPLICABLE TO THE CASE UNDER DISCUSSION AND IS DISPOSITIVE OF THE FLAGSTONE ISSUE. CF. B-155827, FEBRUARY 25, 1965. IT SHOULD BE CAUTIONED, HOWEVER, THAT SITUATIONS CAN AND WILL ARISE WHERE THE ADDENDUM MATERIALLY CHANGES THE REQUIREMENTS AND YET AT THE SAME TIME THE COST OF PERFORMANCE IS DECREASED. IN THOSE CIRCUMSTANCES IT WOULD BE PROPER TO REJECT THE BID AS BEING NONRESPONSIVE ON THE GROUND THAT THE ITEM OFFERED IS IN FACT SOMETHING DIFFERENT FROM THAT REQUIRED AND BID UPON.

WHILE IT IS TRUE THAT THE INVITATION REQUESTED THAT BID PRICES BE WRITTEN OUT IN WORDS AS WELL AS IN FIGURES, WE VIEW THE FAILURE TO WRITE A BID PRICE OUT IN WORDS AS A MINOR INFORMALITY AND SUBJECT TO WAIVER IF THE BID PRICE IS OTHERWISE CLEAR. SEE 30 COMP. GEN. 179, 181.

AFTER CAREFUL REVIEW OF THE RECORD, WE BELIEVE THAT IT WOULD BE PROPER TO AWARD THE SUBJECT CONTRACT TO THE WEISS CONSTRUCTION COMPANY AS PROPOSED.

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