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B-180656, SEP 24, 1974

B-180656 Sep 24, 1974
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1974) THAT AGENCY HAD PRIOR PRACTICE OF NOT REQUIRING SIGNATURE OF AMENDMENTS WHERE SUBJECT MATTER OF AMENDMENT WAS OF SUCH NATURE AS TO ALLOW FAILURE TO ACKNOWLEDGE AND THAT AGENCY MISLED BIDDER INTO CONCLUDING THAT FAILURE TO ACKNOWLEDGE WOULD BE WAIVED IRRESPECTIVE OF PROVISIONS OF SF 30. THUS GAO CONCLUDES THAT THERE WAS NO PRIOR PRACTICE OF FORGOING SIGNATURE OF AMENDMENTS WHERE SUBJECT MATTER WAS NONMATERIAL. THE FACTS AS STATED IN OUR EARLIER DECISION ARE AS FOLLOWS: "INVITATION FOR BIDS (IFB) NO. 5-53473/666. AS SPECIFIED IN ANY ATTACHMENT TO THIS CONTRACT. ***' "NASA STATES THAT: "'*** PRIOR TO THE ISSUANCE OF THE IFB IT WAS ASCERTAINED THAT THE DEPARTMENT OF LABOR WOULD ISSUE A WAGE DETERMINATION APPLICABLE TO THIS PROCUREMENT.

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B-180656, SEP 24, 1974

DUE TO NEW FACTS PRESENTED, GAO REVERSES PRIOR DECISION (MATTER OF BARA PHOTOGRAPHIC, INC., B-180656, JUNE 26, 1974) THAT AGENCY HAD PRIOR PRACTICE OF NOT REQUIRING SIGNATURE OF AMENDMENTS WHERE SUBJECT MATTER OF AMENDMENT WAS OF SUCH NATURE AS TO ALLOW FAILURE TO ACKNOWLEDGE AND THAT AGENCY MISLED BIDDER INTO CONCLUDING THAT FAILURE TO ACKNOWLEDGE WOULD BE WAIVED IRRESPECTIVE OF PROVISIONS OF SF 30. NEW FACTS INDICATE THAT OF LAST 65 AMENDMENTS, 42 DID NOT REQUIRE SIGNATURE EVEN THOUGH ONLY 12 CONTAINED MERELY INFORMATIONAL MATERIAL. THUS GAO CONCLUDES THAT THERE WAS NO PRIOR PRACTICE OF FORGOING SIGNATURE OF AMENDMENTS WHERE SUBJECT MATTER WAS NONMATERIAL.

BARA PHOTOGRAPHIC, INC.:

ON JUNE 26, 1974, OUR OFFICE ISSUED A DECISION RELATIVE TO THIS MATTER. THE FACTS AS STATED IN OUR EARLIER DECISION ARE AS FOLLOWS:

"INVITATION FOR BIDS (IFB) NO. 5-53473/666, ISSUED ON JANUARY 9, 1974, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), GODDARD SPACE FLIGHT CENTER, SOUGHT BIDS ON STILL PHOTOGRAPHIC SERVICES. THE IFB INCORPORATED BY REFERENCE THE FOLLOWING CLAUSE RELATING TO THE SERVICE CONTRACT ACT:

"'(A) COMPENSATION. EACH SERVICE EMPLOYEE EMPLOYED IN THE PERFORMANCE OF THIS CONTRACT BY THE CONTRACTOR OR ANY SUBCONTRACTOR SHALL BE PAID NOT LESS THAN THE MINIMUM MONETARY WAGE AND SHALL BE FURNISHED FRINGE BENEFITS IN ACCORDANCE WITH THE WAGES AND FRINGE BENEFITS DETERMINED BY THE SECRETARY OF LABOR OR HIS AUTHORIZED REPRESENTATIVE, AS SPECIFIED IN ANY ATTACHMENT TO THIS CONTRACT. ***'

"NASA STATES THAT:

"'*** PRIOR TO THE ISSUANCE OF THE IFB IT WAS ASCERTAINED THAT THE DEPARTMENT OF LABOR WOULD ISSUE A WAGE DETERMINATION APPLICABLE TO THIS PROCUREMENT. RATHER THAN DELAY THE PROCUREMENT, THE CONTRACTING OFFICER DETERMINED THAT THE SOLICITATION SHOULD BE ISSUED, AND THAT THE WAGE DETERMINATION OF THE SECRETARY OF LABOR WOULD BE INCORPORATED BY A LATER AMENDMENT ***.'

"IN THIS REGARD, AMENDMENT NO. 1, CONTAINING WAGE DETERMINATION NO. 74-67 DATED JANUARY 25, 1974, WAS ISSUED ON JANUARY 31, 1974. AMENDMENT NO. 2, RELATING TO BILLING PROCEDURES, WAS ALSO ISSUED ON JANUARY 31, 1974.

"UPON OPENING, FEBRUARY 5, 1974, THE FOLLOWING BIDS WERE RECEIVED:

BARA PHOTOGRAPHIC, INC. $140,615.80

CONSOLIDATED VISUAL CENTER 172,181.80

B. L. LABS 183,173.00

SCIEN-TECH COMMUNICATIONS 216,708.15

JAMES R. DULOP, INC. 239,422.50

"NASA NOTED THAT BARA HAD FAILED TO ACKNOWLEDGE RECEIPT OF EITHER AMENDMENT 1 OR 2. THE CONTRACTING OFFICER, THEREAFTER, DECLARED BARA'S BID NONRESPONSIVE ON THIS BASIS.

"BARA ASSERTS THAT BLOCK 13 OF STANDARD FORM (SF) 30 (JULY 1966), AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT, AS CHECKED BY NASA, LED THE PROTESTER TO CONCLUDE THAT NOTHING FURTHER WAS REQUIRED OF IT IN THE FORM OF AN ACKNOWLEDGMENT. BLOCK 13 OF AMENDMENT NO. 1 READ AS FOLLOWS: "'X CONTRACTOR/OFFEROR IS NOT REQUIRED TO SIGN THIS DOCUMENT

CONTRACTOR/OFFEROR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN COPIES TO ISSUING OFFICE'

"NASA CONTENDS THAT EVEN THOUGH BLOCK 13 WAS CHECKED AS IT WAS, THERE WAS NO WAIVER OF THE BIDDER'S OBLIGATION UNDER BLOCK 9 TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT.

"BLOCK 9 READ AS FOLLOWS:

"'9. THIS BLOCK APPLIES ONLY TO AMENDMENTS OF SOLICITATIONS

X THE ABOVE NUMBERED SOLICITATION IS AMENDED AS SET FORTH IN BLOCK 12.

THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS IS EXTENDED, X IS NOT EXTENDED.

OFFERORS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SPECIFIED IN THE SOLICITATION, OR AS AMENDED, BY ONE OF THE FOLLOWING METHODS:

(A) BY SIGNING AND RETURNING COPIES OF THIS AMENDMENT; (B) BY ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE OFFER SUBMITTED; OR (C) BY SEPARATE LETTER OR TELEGRAM WHICH INCLUDES REFERENCE TO THE SOLICITATION AND AMENDMENT NUMBERS. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED, SUCH CHANGE MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THE SOLICITATION AND THIS AMENDMENT, AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED.'"

IN OUR JUNE 26 DECISION, WE DISTINGUISHED THE FACTS OF THE INSTANT PROCUREMENT FROM NEARLY IDENTICAL FACTS SET OUT IN 51 COMP. GEN. 408 (1972) ON THE BASIS THAT THE CONTRACTING ACTIVITY IN THIS INSTANCE HAD A PRIOR PRACTICE OF INDICATING TO BIDDERS THAT THEY WERE NOT REQUIRED TO SIGN THE AMENDMENT IN THOSE SITUATIONS WHERE THE CONTENT OF THE AMENDMENT WAS ESSENTIALLY INFORMATIONAL (WHERE THE BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT COULD BE WAIVED AS A MINOR INFORMALITY). WE THUS CONCLUDED THAT BASED ON THIS PRACTICE A BIDDER COULD REASONABLY HAVE ANTICIPATED THAT WHERE THE AGENCY DID NOT REQUIRE SIGNATURE OF THE AMENDMENT, FAILURE TO ACKNOWLEDGE THE AMENDMENT IN TIMELY FASHION WOULD NOT ABSOLUTELY INVALIDATE OR RENDER NONRESPONSIVE THE BID.

NASA HAS, IN SUPPORT OF ITS REQUEST FOR RECONSIDERATION OF OUR EARLIER DECISION, ANALYZED THE SOLICITATIONS AND AMENDMENTS THERETO ISSUED BY THIS PROCURING ACTIVITY WITHIN THE LAST 18 MONTHS. THE SUM OF ITS REVIEW INDICATES THAT OF 65 AMENDMENTS ISSUED DURING THIS PERIOD, ON 42 OCCASIONS THE AGENCY DID NOT CHECK BLOCK 13 OF SF 30 TO INDICATE A REQUIREMENT THAT THE BIDDER HAD TO SIGN THE AMENDMENT EVEN THOUGH ONLY 12 OF THE AMENDMENTS CONTAINED SUBJECT MATTER WHICH WAS MERELY INFORMATIONAL.

BASED ON THESE NEW FACTS, WE FIND NO PRIOR PRACTICE OF REQUIRING SIGNATURE OF AMENDMENTS ONLY WHERE THE SUBJECT MATTER WAS MATERIAL. INDEED, SIGNATURE WAS NOT REQUIRED IN MANY CIRCUMSTANCES WHERE THE SUBJECT MATTER WAS MATERIAL (AND FAILURE TO ACKNOWLEDGE COULD NOT BE WAIVED). THEREFORE, THERE APPEARS TO BE NO BASIS FOR OUR ORIGINAL CONCLUSION THAT BARA WAS MISLED TO ITS DETRIMENT BY AN APPARENT CHANGE IN THE ACTIVITY'S PRIOR PRACTICE OF WAIVING THE FAILURE TO ACKNOWLEDGE IN THOSE INSTANCES WHERE NO SIGNATURE WAS REQUIRED.

CONSEQUENTLY, OUR EARLIER DECISION IS REVERSED AND THE REJECTION OF BARA'S BID AS NONRESPONSIVE APPEARS TO HAVE BEEN PROPER. ACCORDINGLY, OUR EARLIER RECOMMENDATION THAT THE PROCUREMENT BE RESOLICITED NEED NOT BE FOLLOWED.

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