B-140165, SEP. 11, 1959

B-140165, SEP. 11, 1959

TO MILLER CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1959, WITH ITS ENCLOSURES, PROTESTING AWARDS TO ANOTHER BIDDER UNDER INVITATIONS FOR BID NOS. ENG-44-008-59-108 AND ENG-44-008-59-143 ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FT. BELVOIR, VIRGINIA.

INVITATION NO. ENG-44-008-59-108 WAS ISSUED JUNE 8, 1959, REQUESTING BIDS --- TO BE OPENED JUNE 25, 1959--- FOR RENOVATION OF MACKENZIE HALL, FT. BELVOIR. YOU SUBMITTED A BID IN THE AMOUNT OF $195,980. THE OTHER BIDS RECEIVED RANGED FROM $197,200 TO $264,444.

THE RECORD BEFORE US SHOWS THAT YOU ACKNOWLEDGED RECEIPT OF AMENDMENTS NOS. 1 AND 2 DATED JUNE 18 AND JUNE 23, RESPECTIVELY, BUT YOU DID NOT ACKNOWLEDGE RECEIPT OF THE WAGE AMENDMENT DATED JUNE 19. ON EACH OF THE THREE AMENDMENTS WAS A NOTICE AS FOLLOWS:

"NOTICE: BIDDERS ARE REQUIRED TO ACKNOWLEDGE RECEIPT OF THIS ADDENDUM ON THE BID FORM, IN THE SPACE PROVIDED, OR BY SEPARATE LETTER OR TELEGRAM PRIOR TO OPENING OF BIDS. FAILURE TO ACKNOWLEDGE ALL ADDENDA WILL CAUSE THE BID TO BE REJECTED AS NON-RESPONSIVE.'

YOUR BID AND THE NEXT LOW BID WERE REJECTED BECAUSE OF FAILURE TO ACKNOWLEDGE RECEIPT OF THE WAGE AMENDMENT AND AWARD WAS MADE ON JUNE 30, 1959, TO ALTON ENGINEERING COMPANY, THE THIRD LOW BIDDER.

INVITATION NO. ENG-44-008-59-143 WAS ISSUED JUNE 16, 1959, REQUESTING BIDS--- TO BE OPENED JUNE 30, 1959--- FOR REHABILITATION OF TOILETS IN PERMANENT BARRACKS. YOU SUBMITTED A BID IN THE AMOUNT OF $89,693. THE OTHER BIDS RECEIVED RANGED FROM $93,000 TO $123,500.

A WAGE AMENDMENT DATED JUNE 19 WAS ISSUED UNDER THIS INVITATION BUT YOU DID NOT ACKNOWLEDGE RECEIPT THEREOF, ALTHOUGH IT INCLUDED A NOTICE IDENTICAL TO THE NOTICE QUOTED ABOVE FROM THE AMENDMENTS TO INVITATION NO. ENG-44-008-59-108. YOUR BID WAS REJECTED BECAUSE OF FAILURE TO ACKNOWLEDGE RECEIPT OF THE WAGE AMENDMENT AND AWARD WAS MADE ON JUNE 30, 1959, TO ALTON ENGINEERING COMPANY, THE SECOND LOW BIDDER.

PARAGRAPH 2-251A OF ARMY PROCUREMENT PROCEDURE, PROVIDES, IN PART, THAT:

"IN THE EVENT AN AMENDMENT INVOLVING A CHANGE IN PRICING IS NOT ACKNOWLEDGED PRIOR TO THE OPENING OF THE BIDS, THE BID SHALL BE CONSIDERED AS NOT RESPONSIVE, AND FURTHER INQUIRY AS TO RECEIPT NEED NOT BE MADE.'

YOU ALLEGE THAT YOU WERE AWARDED CONTRACT NO DA-44-008-ENG-1482 ALTHOUGH YOU HAD NOT ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 1 PERTAINING TO WAGE RATES. HOWEVER, THE PERTINENT FILE CONTAINS A COPY OF THE BID FORM SUBMITTED BY YOU IN THAT MATTER (INVITATION NO. ENG-44-008-59 60) WHEREIN YOU SPECIFICALLY ACKNOWLEDGED RECEIPT OF ADDENDUM NO. 1 DATED MARCH 18, 1959, (ALSO ADDENDA NOS. 2 AND 3). AMENDMENT NO. 1 DATED MARCH 18, 1959, MADE SEVERAL CHANGED IN THE INVITATION, INCLUDING A CHANGE IN WAGE RATES, AND CARRIED THE SAME NOTICE REFERRING TO ITSELF AS AN ADDENDUM AS THE NOTICE ABOVE QUOTED FROM THE AMENDMENTS TO INVITATION NO. ENG-44-008-59- 108.

A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER. THE AWARD IS, IN FACT, AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE CONTRACTOR AND THE GOVERNMENT. IT IS A WELL-RECOGNIZED RULE OF LAW THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE. YOUR OFFER PROPOSED ONLY TO COMPLY WITH THE PROVISIONS OF THE ORIGINAL INVITATION AND THE ADDENDA OR AMENDMENTS WHICH YOU SPECIFICALLY ACKNOWLEDGED YOU HAD RECEIVED. THEREFORE, THE GOVERNMENT COULD NOT, WITHOUT YOUR CONSENT, HAVE ACCEPTED THE OFFER AND REQUIRED PERFORMANCE IN ACCORDANCE WITH THE INVITATION AS AMENDED, INCLUDING THE WAGE AMENDMENT. TO GIVE A BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION AS AMENDED, OR TO PRECLUDE AWARD TO THE BIDDER BY ALLEGING NON-RECEIPT OF ONE OR MORE AMENDMENTS, OR SAYING NOTHING, WOULD GIVE THAT BIDDER AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION. SUCH ADVANTAGE WOULD BE CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT.

FOR THE REASONS ABOVE SET FORTH, THERE DOES NOT APPEAR ANY PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BIDS AND MAKING THE AWARDS TO ANOTHER BIDDER.