B-146313, OCT. 17, 1961

B-146313, OCT. 17, 1961

TO RICHARD M. COLASURD, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2, 1961, REQUESTING, ON THE BASIS OF ADDITIONAL INFORMATION FURNISHED BY YOU AND THE CONTRACTING OFFICE, RECONSIDERATION OF THE DECISION IN B-146313 OF AUGUST 2, 1961, THAT AN AWARD TO ALL-GOOD-HOUSE-CLEANING AND REPAIR COMPANY UNDER INVITATION ORD-33-079-61-261 SHOULD BE CANCELED.

WE HAVE NOW BEEN ADVISED THAT TWENTY DAYS PRIOR TO THE OPENING OF BIDS THE CONTRACTING OFFICER'S REPRESENTATIVE SHOWED A GROUP OF REPRESENTATIVES OF EACH OF THE BIDDERS, EXCEPT NATIONAL JANITOR SERVICE, THROUGH THE AREAS IN WHICH THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO PERFORM. MR. FRANK COOPER, OWNER OF ALL-GOOD-HOUSE CLEANING AND REPAIR COMPANY, WAS PRESENT FOR THE INSPECTION.

IT HAS BEEN REPORTED FURTHER THAT DURING THE INSPECTION THE BIDDERS' REPRESENTATIVES FOUND THAT CERTAIN OF THE AREAS DID NOT COINCIDE WITH THE INVITATION IN DESCRIPTION OR SQUARE FOOTAGE AND THIS IMMEDIATELY WAS BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER'S REPRESENTATIVE. TOLD THEM THAT AN AMENDMENT TO THE INVITATION WOULD BE ISSUED TO INCLUDE THE AREAS THEY HAD OBSERVED AND THEY STATED THAT THEY WOULD BID ON THE SQUARE FOOTAGE AS CALCULATED DURING THE INSPECTION. SIX DAYS LATER THE AMENDMENT WAS ISSUED ADDING TO THE ORIGINAL INVITATION 11,200 SQUARE FEET WHICH HAD BEEN MADE KNOWN TO THE BIDDERS' REPRESENTATIVES THROUGH THEIR EARLIER INSPECTION.

YOU STATE THAT 33 COMP. GEN. 508 IS ANALOGOUS TO THE IMMEDIATE SITUATION. THE CITED DECISION INDICATED THAT AN ORAL ACKNOWLEDGEMENT OF A SUBSTANTIVE AMENDMENT TO THE INVITATION PRIOR TO THE OPENING OF BIDS WOULD BE ACCEPTABLE IF MADE BY AN AUTHORIZED REPRESENTATIVE OF THE BIDDER. YOU SUGGEST THAT IN THE IMMEDIATE CASE SINCE THE OWNER OF ALL-GOOD-HOUSE- CLEANING AND REPAIR COMPANY BECAME AWARE OF THE ACTUAL SQUARE FOOTAGE AT THE SITE INSPECTION AND STATED THEN THAT HE WOULD BID ON THE AREA TO BE CORRECTED BY AMENDMENT THAT HE HAD LIKEWISE ORALLY ACKNOWLEDGED THE AMENDMENT PRIOR TO THE OPENING OF BIDS.

HOWEVER, THE SPECIFICATIONS AT PARAGRAPH 2.02, ENTITLED "SITE INVESTIGATION," CAUTION BIDDERS THAT ANY UNDERSTANDING OR REPRESENTATION MADE BY ANY GOVERNMENT OFFICER OR AGENT DURING OR PRIOR TO NEGOTIATION AND EXECUTION OF THE CONTRACT IS NOT BINDING UNLESS EXPRESSLY STATED IN THE CONTRACT. THEREFORE, WHILE THE CONTRACTING OFFICER'S REPRESENTATIVE MAY HAVE REPRESENTED AT THE SITE INVESTIGATION THAT THE SQUARE FOOTAGE AS OBSERVED WAS CORRECT AND THAT AN AMENDMENT WOULD BE ISSUED TO COVER THE ADDITIONAL FOOTAGE, AND HE MAY HAVE UNDERSTOOD THAT THE BIDDER WOULD BID ON THE INVITATION AS IT WOULD BE AMENDED, THIS TRANSACTION WOULD BE UNENFORCEABLE IN VIEW OF THE DISCLAIMER OF ANY UNDERSTANDING MADE IN PARAGRAPH 2.02 OF THE SPECIFICATIONS.

WHILE, UNDER PARAGRAPH 2.02, THE REPRESENTATIONS CAN BECOME BINDING WHEN EXPRESSLY STATED IN THE CONTRACT, TO ACCOMPLISH THIS PURPOSE IT WOULD BE NECESSARY THAT THE AMENDMENT BE FURNISHED TO THE BIDDER AFTER ITS FORMAL ISSUANCE AND THAT THE BIDDER ACKNOWLEDGE THE AMENDMENT THEREAFTER FOR OTHERWISE THE BID SUBMITTED MAKING REFERENCE ONLY TO THE ORIGINAL INVITATION WOULD CONSTITUTE SOMETHING LESS THAN A RESPONSIVE OFFER AND COULD NOT BECOME A VALID CONTRACT UPON ACCEPTANCE BY THE GOVERNMENT. SUCH AN OFFER WOULD BE UNRESPONSIVE AND SHOULD THEREFORE BE DISREGARDED. COMPARE 40 COMP. GEN. 126. TO HOLD OTHERWISE WOULD HAVE GIVEN ALL-GOOD AN OPTION TO DECIDE AFTER BID OPENING WHETHER TO BECOME ELIGIBLE FOR AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID THAT THE ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT SINCE TWO BIDS HAD BEEN OPENED BEFORE ITS BID WAS OPENED.