B-146313, AUG. 2, 1961

B-146313, AUG. 2, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF JULY 27, 1961, FROM THE DEPUTY CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REPORTING ON THE PROTEST OF NATIONAL JANITOR SERVICE CORPORATION AGAINST THE AWARD OF A CONTRACT TO ALL-GOOD-HOUSE-CLEANING AND REPAIR COMPANY UNDER INVITATION ORD-33-079-61-261.

AT THE OPENING OF BIDS IT WAS DISCOVERED THAT THE LOW BID SUBMITTED BY ALL-GOOD-HOUSE-CLEANING AND REPAIR COMPANY WAS NOT ACCOMPANIED BY AMENDMENT NO. 1 INCREASING THE AREA IN WHICH THE JANITORIAL SERVICES REQUIRED BY THE INVITATION ARE TO BE PERFORMED. A REPRESENTATIVE OF THE BIDDER VOLUNTEERED THE INFORMATION AT THAT TIME THAT THE BID WAS INTENDED TO COVER THE INVITATION AS AMENDED. HE WAS THEN ALLOWED TO EXECUTE THE AMENDMENT FORM. THE NEXT DAY A PREAWARD SURVEY TEAM VISITED THE BIDDER UNANNOUNCED AND ASKED FOR AN EXPLANATION AS TO WHY THE AMENDMENT HAD NOT BEEN RECEIVED AT BID OPENING TIME. REPRESENTATIVES FOR THE BIDDER SAID THEY DID NOT UNDERSTAND IT THEMSELVES AS THE AMENDMENT HAD BEEN DEPOSITED IN A MAIL BOX TEN DAYS IN ADVANCE OF OPENING. THE OWNER OF THE COMPANY AND THE SECRETARY SIGNED STATEMENTS TO THAT EFFECT. (NEVERTHELESS THE AMENDMENT THAT ALLEGEDLY WAS MAILED HAS NEVER BEEN RECEIVED.) ALSO, THE PREAWARD SURVEY TEAM WAS SHOWN THE BIDDER'S COPY OF THE INVITATION ON THE FACE OF WHICH APPEARS FIGURES REFLECTING THE ADDITIONAL AREA SPECIFIED IN THE AMENDMENT. IN THE CIRCUMSTANCES, AND SINCE THE BIDDER WAS DETERMINED TO BE RESPONSIBLE, AN AWARD WAS MADE TO IT.

IT HAS BEEN WELL ESTABLISHED BY DECISIONS OF OUR OFFICE THAT A BID UNACCOMPANIED BY AN EXECUTED AMENDMENT TO THE INVITATION WHICH AFFECTS EITHER PRICE, QUANTITY OR QUALITY OF THE WORK TO BE PERFORMED IS AN UNRESPONSIVE BID THAT IS REQUIRED TO BE REJECTED WITHOUT ANY FURTHER CONSIDERATION. SEE FOR EXAMPLE 30 COMP. GEN. 179; 33 ID. 508; 37 ID. 785; AND B-141299, DECEMBER 14, 1959.

IN AN EQUALLY COMPARABLE SITUATION IN 17 COMP. GEN. 554, AT PAGES 558 AND 559, IT IS STATED:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS WERE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056---

" "* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

ACCORDINGLY, WE ARE CONSTRAINED TO CONCLUDE THAT IT WAS IMPROPER TO MAKE THE AWARD TO ALL-GOOD-HOUSE-CLEANING AND REPAIR COMPANY. IT SHOULD THEREFORE BE CANCELED.