B-123911, JUL. 7, 1955

B-123911: Jul 7, 1955

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 6. THERE HAVE BEEN RECEIVED YOUR LETTERS OF MAY 12 AND JUNE 3. BIDDERS WERE ADVISED OF REVISED WAGE RATES AND THAT SEVERAL NEW PAGES IN THE SPECIFICATIONS HAD BEEN SUBSTITUTED. ADDENDUM NO. 2 WAS ISSUED PROVIDING FOR A REVISION OF THE SPECIFICATIONS FOR THE WATER TREATMENT PLANT AND EQUIPMENT. MIDLAND'S BID WAS LOW BUT WAS REJECTED BECAUSE OF THE BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 2. IT IS YOUR CONTENTION THAT THE INADVERTENT FAILURE TO ACCOMPANY THE BID WITH A SIGNED COPY OF THE ADDENDUM TO THE SPECIFICATIONS DOES NOT RENDER THE BID INVALID. IT IS CLAIMED THAT THE BIDDER NOTIFIED THE DISTRICT ENGINEER IN WRITING THAT THE ADDENDUM WAS TAKEN INTO CONSIDERATION IN PREPARING ITS BID AND OFFERED TO SUBMIT ITS BID ESTIMATE TO PROVE THAT IT DID SO.

B-123911, JUL. 7, 1955

TO O. R. MCGUIRE, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1955, WITH ENCLOSURES, PROTESTING ON BEHALF OF MIDLAND CONSTRUCTORS, INCORPORATED, THE REJECTION OF THAT CONCERN'S BID SUBMITTED IN RESPONSE TO INVITATION NO. ENG-45-108- 55-170. ALSO, THERE HAVE BEEN RECEIVED YOUR LETTERS OF MAY 12 AND JUNE 3, 1955, RELATIVE TO THIS MATTER.

THE ORIGINAL INVITATION ISSUED APRIL 1, 1955, REQUESTED BIDS FOR FURNISHING ALL PLANT, LABOR, MATERIAL AND EQUIPMENT AND ALL WORK INCIDENT TO THE CONSTRUCTION OF A POST EXCHANGE AND RECREATION BUILDING AND WATER TREATMENT PLANT ADDITION AT THE HAVRE AIR FORCE STATION, MONTANA, IN STRICT ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS, SCHEDULES AND DRAWINGS. BY ADDENDUM NO. 1, ISSUED ON APRIL 12, 1955, BIDDERS WERE ADVISED OF REVISED WAGE RATES AND THAT SEVERAL NEW PAGES IN THE SPECIFICATIONS HAD BEEN SUBSTITUTED. ON APRIL 15, 1955, ADDENDUM NO. 2 WAS ISSUED PROVIDING FOR A REVISION OF THE SPECIFICATIONS FOR THE WATER TREATMENT PLANT AND EQUIPMENT. THIS LATTER ADDENDUM EXPRESSLY ADVISED BIDDERS THAT "RECEIPT OF THIS ADDENDUM MUST BE ACKNOWLEDGED BY NUMBER AND DATE IN THE SPACE PROVIDED ON THE REVERSE OF STANDARD FORM 21, BID FORM (CONSTRUCTION CONTRACT) OF YOUR BID WHEN SUBMITTED.'

MIDLAND'S BID WAS LOW BUT WAS REJECTED BECAUSE OF THE BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 2. IT IS YOUR CONTENTION THAT THE INADVERTENT FAILURE TO ACCOMPANY THE BID WITH A SIGNED COPY OF THE ADDENDUM TO THE SPECIFICATIONS DOES NOT RENDER THE BID INVALID. ALSO, IT IS CLAIMED THAT THE BIDDER NOTIFIED THE DISTRICT ENGINEER IN WRITING THAT THE ADDENDUM WAS TAKEN INTO CONSIDERATION IN PREPARING ITS BID AND OFFERED TO SUBMIT ITS BID ESTIMATE TO PROVE THAT IT DID SO.

THE DEPARTMENT OF THE ARMY REPORTS, IN SUBSTANCE, THAT THE CHANGES MADE BY THE ADDENDUM WERE SO MATERIAL AS TO AFFECT THE PRICES TO BE QUOTED.

WHEN MIDLAND'S BID WAS OPENED THERE WAS NOTHING TO INDICATE THAT ADDENDUM NO. 2 HAD BEEN TAKEN INTO CONSIDERATION; ON THE CONTRARY, THE BID INDICATED THAT SUCH ADDENDUM HAD NOT BEEN CONSIDERED. THUS THE BID AS SUBMITTED COULD BE ACCEPTED ONLY ON THE BASIS OF THE ORIGINAL SPECIFICATIONS AND ADDENDUM NO. 1, SINCE THERE WAS NO INDICATION THE BIDDER RECEIVED OR CONSIDERED ADDENDUM NO. 2. THEREFORE, UNLESS THIS DEVIATION BE CONSIDERED MATERIAL, AND NOT SUBJECT TO WAIVER AFTER OPENING, MIDLAND WAS IN A POSITION WHERE IT COULD MAKE AN ELECTION, AFTER OPENING, EITHER TO ABIDE BY ITS BID AS INCLUDING ADDENDUM NO. 2 OR TO CLAIM NON- RECEIPT AND NON-INCLUSION OF SUCH ADDENDUM.

WE HAVE HELD THAT THE FAILURE OF A BIDDER TO CERTIFY THAT HE HAD RECEIVED ALL ADDENDA AS REQUIRED BY THE INVITATION WOULD NOT BE WAIVED AS AN INFORMAL DEVIATION IF THE ADDENDA INVOLVED AFFECTED THE PRICE, QUANTITY, OR QUALITY OF THE WORK. 33 COMP. GEN. 508. SINCE, AS ABOVE INDICATED, THE ADDENDUM IN QUESTION DID AFFECT THE PRICE OF THE WORK, THE DEVIATION MAY NOT PROPERLY BE REGARDED AS AN INFORMALITY WHICH MAY BE WAIVED.

ACCORDINGLY, ON THE BASIS OF THE FACTS OF RECORD HERE, WE PERCEIVE NO LEGAL BASIS FOR OBJECTING TO THE AWARD.