B-179169, DEC 21, 1973

B-179169, DEC 21, 1973

WHERE AMENDMENT TO IFB FOR GUARD SERVICES ADDED A DEPARTMENT OF LABOR WAGE DETERMINATION AND EXTENDED BID OPENING DATE, LOW BIDDER WHO FAILED TO FORMALLY ACKNOWLEDGE AMENDMENT SHOULD NOT HAVE HAD BID REJECTED SINCE THERE WAS CLEAR EVIDENCE THAT THE BIDDER RECEIVED THE AMENDMENT INASMUCH AS THE BID FORM AND ACCOMPANYING LETTER WERE DATED IN ACCORDANCE WITH THE EXTENDED BID OPENING DATE. IF RECEIPT OF AMENDMENT IS CLEAR, SUBSEQUENT SUBMISSION OF BID IS A SUFFICIENT MANIFESTATION OF THE BIDDER'S INTENTION TO MEET AMENDED REQUIREMENTS.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER DATED SEPTEMBER 20, 1973, AND PRIOR CORRESPONDENCE FROM THE ASSOCIATE GENERAL COUNSEL, PROCUREMENT LEGAL DIVISION, FEDERAL AVIATION ADMINISTRATION (FAA), REPORTING ON THE PROTEST BY CHEMICAL TECHNOLOGY, INC. (CTI), AGAINST THE REJECTION OF ITS BID AND AWARD OF A CONTRACT TO QUALITY MAINTENANCE COMPANY, INC. (QUALITY), UNDER INVITATION FOR BIDS (IFB) NO. WA5S-3-0723B1. FOR THE REASONS STATED BELOW, WE MUST SUSTAIN THE PROTEST.

THE SOLICITATION, ISSUED ON APRIL 9, 1973, WAS FOR THE FURNISHING OF GUARD SERVICES AT 24 FAA FACILITIES. AMENDMENT NO. 0001, WITH AN EFFECTIVE DATE OF MAY 3, 1973, EXTENDED THE BID OPENING DATE FROM MAY 9, 1973, TO MAY 16, 1973, AND ADDED DEPARTMENT OF LABOR WAGE DETERMINATIONS UNDER THE SERVICE CONTRACT ACT, NOT THERETOFORE INCLUDED.

AMENDMENT NO. 0002, ISSUED ON MAY 15, 1973, FURTHER EXTENDED THE BID OPENING DATE FROM MAY 16, 1973, TO MAY 23, 1973, AND INCLUDED A WAGE DETERMINATION SCHEDULE FOR THE AURORA, COLORADO, SITE. THIS SITE WAS NOT COVERED BY THE WAGE DETERMINATIONS IN THE PRIOR AMENDMENT. CTI DID NOT EXPRESSLY ACKNOWLEDGE THE SECOND AMENDMENT.

AFTER BID OPENING, THE FAA CONCLUDED THAT THE CONTRACT SHOULD BE AWARDED TO THE THIRD LOW BIDDER, QUALITY, AT A PRICE OF $58,248.03 PER MONTH LESS DISCOUNT. THE AGENCY DETERMINED THAT THE LOW BIDDER WAS NOT RESPONSIBLE AND THAT CTI'S NEXT LOW BID OF $57,022.45 PER MONTH LESS DISCOUNT WAS NONRESPONSIVE DUE TO ITS FAILURE TO FORMALLY ACKNOWLEDGE AMENDMENT NO. 0002 IN THE SPACE PROVIDED ON THE BIDDING DOCUMENT, STANDARD FORM 33. NOTWITHSTANDING THE PROTEST BEFORE AWARD, THE RECORD SHOWS THAT THE CONTRACT WAS REQUIRED TO BE AWARDED NO LATER THAN AUGUST 15, 1973, DUE TO THE URGENT AND CRITICAL NEED FOR THE GUARD SERVICES.

WHILE CTI HAS MADE SEVERAL ARGUMENTS IN SUPPORT OF ITS POSITION THAT FAA IMPROPERLY REJECTED ITS BID FOR FAILURE TO FORMALLY ACKNOWLEDGE RECEIPT OF THE SECOND AMENDMENT, WE BELIEVE A SINGLE ARGUMENT IS DETERMINATIVE OF THE MATTER. IT IS CTI'S POSITION THAT ITS ACKNOWLEDGMENT OF RECEIPT OF THE SECOND AMENDMENT, PRIOR TO BIDDING HAS BEEN CLEARLY EVIDENCED BY THE FACT THAT IT SUBMITTED ITS BID AT THE APPOINTED TIME AND DATE SPECIFIED IN THE SECOND AMENDMENT. IN THIS CONNECTION, THE RECORD SHOWS THAT THE BID FORM AND ACCOMPANYING LETTER SUBMITTED BY CTI WERE DATED MAY 23, 1973, TO REFLECT THE AMENDED BID OPENING DATE SET FORTH IN THE SECOND AMENDMENT.

IN B-176462, OCTOBER 20, 1972, OUR OFFICE SUSTAINED THE POSITION TAKEN BY THE PROCURING AGENCY THAT THERE HAD BEEN AN ACKNOWLEDGMENT OF AN AMENDMENT WHICH CHANGED THE TECHNICAL SPECIFICATIONS SINCE THE BIDDER'S BID FORM, BID ENVELOPE, AND SEVERAL OTHER ACCOMPANYING DOCUMENTS WERE DATED TO REFLECT THE EXTENDED BID OPENING DATE APPEARING IN THE AMENDMENT. IT WAS CONCLUDED THAT:

"*** THE REFLECTION IN DIAMOND'S BID OF ONE OF THE SALIENT CHANGES EMBODIED BY AMENDMENT 0002 WAS SUFFICIENT TO CONSTITUTE *** ACKNOWLEDGMENT OF RECEIPT OF THAT AMENDMENT, THEREBY BINDING DIAMOND TO PERFORM ALL OF THE OTHER CHANGES ENUMERATED IN THAT AMENDMENT AT THE PRICE SET OUT IN DIAMOND'S BID."

SIMILARLY, WE THINK THE INCLUSION OF THE EXTENDED BID OPENING DATE IN THE BID FORM AND ACCOMPANYING LETTER CLEARLY INDICATES THAT CTI HAD RECEIVED THE AMENDMENT PRIOR TO BIDDING. WHERE, AS HERE, SUCH RECEIPT IS CLEAR, THE SUBSEQUENT SUBMISSION OF THE BID IS A SUFFICIENT MANIFESTATION OF THE BIDDER'S INTENTION TO SATISFY ALL OF THE GOVERNMENT'S REQUIREMENTS, AS AMENDED, UNLESS THERE IS SOME EXPRESS QUALIFICATION TO THE CONTRARY. SEE FEDERAL PROCUREMENT REGULATIONS 1 2.405(D).

ACCORDINGLY, WE MUST CONCLUDE THAT CTI'S BID WAS IMPROPERLY REJECTED AS NONRESPONSIVE. IF IT CAN BE ESTABLISHED THAT CTI IS A RESPONSIBLE FIRM, WE RECOMMEND THAT THE CONTRACT AWARDED TO QUALITY BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT. QUALITY'S START UP COSTS DO NOT APPEAR TO BE VERY GREAT AND IT APPEARS THAT THE ACCEPTANCE OF CTI'S BID WOULD RESULT IN A SUBSTANTIAL SAVING TO THE GOVERNMENT.

AS THIS DECISION CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN, IT IS BEING TRANSMITTED BY LETTERS OF TODAY TO THE CONGRESSIONAL COMMITTEES NAMED IN SECTION 232 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, PUBLIC LAW 91-510, 84 STAT. 1170, 31 U.S.C. 1172.

IN VIEW THEREOF, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE ACT (31 U.S.C. 1176) WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS OF THE ACTION TO BE TAKEN WITH RESPECT TO THE RECOMMENDATION. THE STATEMENTS ARE TO BE SENT TO THE HOUSE AND SENATE COMMITTEES ON GOVERNMENT OPERATIONS NOT LATER THAN 60 DAYS AFTER THE DATE OF THIS LETTER AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THIS LETTER.

WE WOULD APPRECIATE RECEIVING ADVICE OF WHATEVER ACTION IS TAKEN ON OUR RECOMMENDATION.