B-140412, SEP. 30, 1959

B-140412: Sep 30, 1959

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3. THE INVITATION WAS ISSUED JUNE 15. ADDENDUM NO. 1 WAS ISSUED JUNE 25. ADDENDUM NO. 2 WAS ISSUED JUNE 29. ADDENDUM NO. 3 WAS ISSUED JULY 3. THE INVITATION AND ADDENDA WERE PREPARED AND ISSUED BY THE TAMPA BAY ENGINEERING COMPANY. ON PAGE 2 OF THE INVITATION ARE BLANKS FOR ACKNOWLEDGING RECEIPT OF ADDENDA. YOUR WERE NOTIFIED THAT YOU HAD NOT ACKNOWLEDGED RECEIPT OF ADDENDA NOS. 1 AND 2 THOUGH ACKNOWLEDGING RECEIPT OF ADDENDUM NO. 3. URGING THAT THE ABSENCE OF ACKNOWLEDGMENT OF RECEIPT OF THE ADDENDA WAS AN INFORMALITY IN YOUR BID WHICH COULD BE WAIVED. AWARD WAS MADE TO CLEARWATER CONSTRUCTION COMPANY. THE FACT REMAINS THAT THE MATTER AFFECTED BY THE ADDENDA WAS A FACTOR NORMALLY BEARING UPON THE PRICE OR COST OF CARRYING OUT THE CONTRACT.

B-140412, SEP. 30, 1959

TO PINELLAS CONSTRUCTION COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1959, WITH ITS ENCLOSURES, ACKNOWLEDGED AUGUST 11, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 292-59 53 ISSUED BY THE ATOMIC ENERGY COMMISSION, PINELLAS AREA OFFICE, ST. PETERSBURG, FLORIDA.

THE INVITATION WAS ISSUED JUNE 15, 1959, REQUESTING BIDS--- TO BE OPENED JULY 7, 1959--- FOR CONSTRUCTION OF A BUILDING AT THE PINELLAS PENINSULA PLANT. ADDENDUM NO. 1 WAS ISSUED JUNE 25, 1959, REVISING WAGE RATES AND MAKING CHANGES IN CERTAIN DRAWINGS. ADDENDUM NO. 2 WAS ISSUED JUNE 29, 1959, REVISING SECTION 7 OF THE SPECIFICATIONS AS TO ROOFING. ADDENDUM NO. 3 WAS ISSUED JULY 3, 1959, REVISING A DRAWING AND CERTAIN SPECIFICATIONS. THE INVITATION AND ADDENDA WERE PREPARED AND ISSUED BY THE TAMPA BAY ENGINEERING COMPANY, PRIME ARCHITECT ENGINEER CONTRACTOR OF THE ATOMIC ENERGY COMMISSION. ON PAGE 2 OF THE INVITATION ARE BLANKS FOR ACKNOWLEDGING RECEIPT OF ADDENDA; ALSO, THE FOLLOWING STATEMENT IN CAPITAL LETTERS:

"ACKNOWLEDGEMENT OF RECEIPT OF ALL ADDENDA MUST BE INSERTED.'

IN RESPONSE TO THE INVITATION, YOU SUBMITTED THE LOW BID IN THE AMOUNT OF $32,775. THE SIX OTHER BIDS RECEIVED RANGED FROM $33,611 (CLEARWATER CONSTRUCTION COMPANY) TO $43,831. YOUR WERE NOTIFIED THAT YOU HAD NOT ACKNOWLEDGED RECEIPT OF ADDENDA NOS. 1 AND 2 THOUGH ACKNOWLEDGING RECEIPT OF ADDENDUM NO. 3. BY A LETTER DATED JULY 8, 1959, YOU STATED THAT YOU HAD NOT RECEIVED ADDENDA NOS. 1 AND 2 BUT THAT YOU WOULD ACCEPT AN AWARD AT YOUR BID PRICE, URGING THAT THE ABSENCE OF ACKNOWLEDGMENT OF RECEIPT OF THE ADDENDA WAS AN INFORMALITY IN YOUR BID WHICH COULD BE WAIVED. HOWEVER, ON JULY 28, 1959, AWARD WAS MADE TO CLEARWATER CONSTRUCTION COMPANY, IT HAVING BEEN CONCLUDED BY THE ADMINISTRATIVE OFFICE THAT YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDA NOS. 1 AND 2 COULD NOT BE WAIVED AS A MERE INFORMALITY SINCE THOSE ADDENDA EFFECTED SUBSTANTIVE CHANGES IN THE ORIGINAL INVITATION.

EVEN THOUGH YOU OFFERED, AFTER BID OPENING, TO ACCEPT THE AWARD AND COMPLY WITH ADDENDA NOS. 1 AND 2 WITHOUT MODIFYING THE BID PRICE, THE FACT REMAINS THAT THE MATTER AFFECTED BY THE ADDENDA WAS A FACTOR NORMALLY BEARING UPON THE PRICE OR COST OF CARRYING OUT THE CONTRACT. SUCH VARIATION IS MATERIAL, THEREFORE, AND FAILURE TO REFERENCE IT IN THE BID MAY NOT BE WAIVED. 30 COMP. GEN. 179; 33 ID. 508.

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 THAN 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 ADDENDUM NO. 3, 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 ADDENDA NOS. 1 AND 2. TO GIVE A BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION AS AMENDED, OR TO PRECLUDE AWARD TO THE BIDDER BY ALLEGING NONRECEIPT 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.

THE ADMINISTRATIVE OFFICE STATES, ALSO, THAT ACCORDING TO THE RECORDS OF THE TAMPA BAY ENGINEERING COMPANY, ADDENDUM NO. 1 WAS INCLUDED WITH THE SPECIFICATIONS PICKED UP BY YOUR COMPANY ON JUNE 26, 1959, AND THAT ADDENDUM NO. 2 WAS MAILED TO YOU ON JUNE 29, 1959. MOREOVER, IT IS TO BE OBSERVED THAT SINCE YOU HAD RECEIVED ADDENDUM NO. 3 PRIOR TO SUBMITTING YOUR BID YOU WERE ON NOTICE OF THE EXISTENCE OF ADDENDA NOS. 1 AND 2.

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