B-123804, MAY 10, 1955, 34 COMP. GEN. 581

B-123804: May 10, 1955

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CONTRACTS - SPECIFICATION CHANGES - ACKNOWLEDGMENT OF RECEIPT FAILURE OF THE LOW BIDDER TO FORMALLY ACKNOWLEDGE IN HIS BID THE RECEIPT OF THE ADDENDA TO THE SPECIFICATIONS MAY BE TREATED AS AN INFORMALITY AND WAIVED AS PROVIDED BY THE INVITATION WHERE THE BIDDER COULD NOT HAVE KNOWN ABOUT ITEM NO. 2 ON WHICH HE BID UNLESS HE HAD RECEIVED THE FIRST ADDENDUM AND WHERE THE SECOND ADDENDUM COULD HAVE AFFECTED THE COST OF THE WORK ONLY TO A NEGLIGIBLE DEGREE IF AT ALL. 1955: REFERENCE IS MADE TO A LETTER DATED APRIL 28. THE ABSTRACT OF BIDS SHOWS THAT SEVEN BIDS WERE RECEIVED. IT IS STATED IN THE LETTER OF APRIL 28. WHICH WAS ONLY SET UP IN ADDENDUM NO. 1. IT WAS REPORTED THAT THE BUREAU OF YARDS AND DOCKS CONSIDERS THAT THE SUBMISSION OF A PRICE UPON ITEM 2 FOR "THE ENTIRE WORK COMPLETE IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS.

B-123804, MAY 10, 1955, 34 COMP. GEN. 581

CONTRACTS - SPECIFICATION CHANGES - ACKNOWLEDGMENT OF RECEIPT FAILURE OF THE LOW BIDDER TO FORMALLY ACKNOWLEDGE IN HIS BID THE RECEIPT OF THE ADDENDA TO THE SPECIFICATIONS MAY BE TREATED AS AN INFORMALITY AND WAIVED AS PROVIDED BY THE INVITATION WHERE THE BIDDER COULD NOT HAVE KNOWN ABOUT ITEM NO. 2 ON WHICH HE BID UNLESS HE HAD RECEIVED THE FIRST ADDENDUM AND WHERE THE SECOND ADDENDUM COULD HAVE AFFECTED THE COST OF THE WORK ONLY TO A NEGLIGIBLE DEGREE IF AT ALL.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE NAVY, MAY 10, 1955:

REFERENCE IS MADE TO A LETTER DATED APRIL 28, 1955, WITH ENCLOSURES (L- 400C/SM NOV-85894), FROM THE DEPUTY CHIEF OF THE BUREAU OF YARDS AND DOCKS, REQUESTING A DECISION AS TO THE PROPRIETY OF AWARDING A CONTRACT TO ROBERT M. DUNVILLE AND BROS., INC., ON THE BASIS OF A BID SUBMITTED IN RESPONSE TO THE INVITATION CONTAINING SPECIFICATION NO. 43077, AS MODIFIED BY ADDENDA NOS. 1 AND 2, FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR A CERTAIN CONSTRUCTION PROJECT AT THE NAVAL SUPPLY CENTER ( CHEATHAM ANNEX), WILLIAMSBURG, VIRGINIA.

THE ABSTRACT OF BIDS SHOWS THAT SEVEN BIDS WERE RECEIVED, RANGING FROM $434,808 TO $564,200 FOR ITEM 1 (THE ENTIRE WORK) AND FROM $415,848 TO $541,400 ON ITEM 2 (ENTIRE WORK LESS CANOPY), THE LOWEST BID IN EACH INSTANCE BEING THAT OF ROBERT M. DUNVILLE AND BROS. INCORPORATED. IT IS STATED IN THE LETTER OF APRIL 28, THAT THE LOW BID FAILS TO ACKNOWLEDGE RECEIPT OF ADDENDA NOS. 1 AND 2, BUT THAT, HOWEVER, THE LOW BIDDER INSISTS THAT BY BIDDING UPON ITEM 2, WHICH WAS ONLY SET UP IN ADDENDUM NO. 1, HE HAD IN EFFECT ACKNOWLEDGED THAT ADDENDUM. THE LOW BIDDER FURTHER INSISTS THAT ADDENDUM NO. 2 DOES NOT AFFECT THE PRICE OF THE WORK.

RESPECTING SUCH CONTENTIONS, IT WAS REPORTED THAT THE BUREAU OF YARDS AND DOCKS CONSIDERS THAT THE SUBMISSION OF A PRICE UPON ITEM 2 FOR "THE ENTIRE WORK COMPLETE IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS," LESS REPLACEMENT OF LOADING DOCK CANOPY, CONSTITUTES A SUFFICIENT ACKNOWLEDGMENT OF ADDENDUM NO. 1. AS TO ADDENDUM NO. 2, THE BUREAU FOUND THAT THE CHANGES MADE BY THAT ADDENDUM AMOUNT TO A CLARIFICATION OF SPECIFICATION REQUIREMENTS WITH SOME SLIGHT INCREASES IN QUALITY OF WORK AND SOME SMALL INCREASE IN QUANTITY OF WORK, AT AN ESTIMATED COST OF FROM $20 TO $150. IN VIEW OF THE FACT THAT THE POSSIBLE INCREASED COST OF $150 IS MINUTE IN RELATION TO THE SIZE OF THE PROJECT AND THE $12,000 TO $14,000 DIFFERENCE BETWEEN THE LOW BID AND THE SECOND-LOW BID, IT IS STATED THAT THE BUREAU DOES NOT CONSIDER IT ADVISABLE TO READVERTISE.

THE INSTRUCTIONS TO BIDDERS CONTAINED IN THE INVITATION PROVIDED THAT " BIDS WHICH DO NOT REFERENCE ALL ADDENDA * * * MAY BE CONSIDERED INFORMAL" AND PARAGRAPH 16 OF STANDARD FORM 22 MADE A PART OF THE INVITATION PROVIDED THAT "THE UNITED STATES, HOWEVER, RESERVES THE RIGHT * * * TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHENEVER SUCH WAIVER IS IN THE INTEREST OF THE UNITED STATES.' ALTHOUGH, IN THE PREVIOUS NAVY DEPARTMENT CASE REFERRED TO IN THE LETTER OF SUBMISSION (33 COMP. GEN. 508), WE HELD THAT THE FAILURE OF A BIDDER TO CERTIFY THAT HE HAD RECEIVED ALL ADDENDA AS REQUIRED BY THE INVITATION COULD NOT BE WAIVED AS AN INFORMAL DEVIATION IF THE ADDENDA INVOLVED AFFECTED THE PRICE, QUANTITY, OR QUALITY OF THE WORK, THERE APPEARS TO BE NO QUESTION HERE BUT THAT THE LOW BIDDER'S ACTION IN BIDDING ON ITEMS 1 AND 2 CONSTITUTED CONSTRUCTIVE ACKNOWLEDGMENT OF RECEIPT OF ADDENDUM NO. 1. FURTHERMORE, THE FACTS SUBMITTED STRONGLY INDICATE THAT THE CLARIFICATION OF THE SPECIFICATIONS EFFECTED BY ADDENDUM NO. 2 COULD HAVE AFFECTED THE COST OF THE WORK ONLY TO A NEGLIGIBLE DEGREE, IF AT ALL. WE AGREE, THEREFORE, THAT THE DEVIATION IN THIS PARTICULAR INSTANCE PROPERLY MAY BE TREATED AS AN INFORMALITY AND WAIVED AS PROVIDED BY THE INVITATION.