B-141299, DEC. 14, 1959

B-141299: Dec 14, 1959

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BIDS WERE OPENED ON OCTOBER 26. IT IS ESTIMATED THAT THE CHANGES EFFECTED BY THE FIRST TWO ADDENDA INCREASED THE COST OF THE WORK IN THE NET AMOUNT OF $27. PROVIDES IN PART AT PARAGRAPH 1: "* * * ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INTERPRETATION MADE WILL BE IN THE FORM OF AN ADDENDUM TO THE SPECIFICATIONS OR DRAWINGS AND WILL BE FURNISHED TO ALL BIDDERS AND ITS RECEIPT BY THE BIDDER SHALL BE NOWLEDGED.'. RECEIPT OF THE ADDENDA WAS NOT ACKNOWLEDGED BY THE LOW BIDDER. REGISTERED MAIL RECEIPTS FOR THE FIRST TWO ADDENDA WERE SIGNED BY AN EMPLOYEE OF THE LOW BIDDER WHO HAD AUTHORITY TO PICK UP MAIL AND SIGN FOR CERTIFIED OR REGISTERED MAIL.

B-141299, DEC. 14, 1959

TO MR. J. C. CLARKE, CONTRACTING OFFICER, UNITED STATES ATOMIC ENERGY COMMISSION:

WE REFER TO YOUR LETTERS OF NOVEMBER 19 AND DECEMBER 4, 1959, SUBMITTING FOR OUR DETERMINATION A QUESTION AS TO THE CORRECTABILITY AND ACCEPTABILITY OF A BID SUBMITTED BY THE E. W. HOWELL COMPANY PURSUANT TO INVITATION FOR BIDS NO. NI 5-60, ISSUED AUGUST 25, 1959, FOR THE CONSTRUCTION OF A BUILDING.

BIDS WERE OPENED ON OCTOBER 26, 1959. THE INVITATION AS ORIGINALLY ISSUED HAD BEEN MODIFIED BY ADDENDA 1 AND 2 FURNISHED TO INTERESTED BIDDERS BY REGISTERED MAIL ON OCTOBER 13 AND 15 RESPECTIVELY, AND BY A TELEGRAPHIC ADDENDUM 3, SENT ON OCTOBER 23. THE LAST ADDENDUM DID NOT AFFECT PRICE, QUANTITY, OR QUALITY OF THE WORK, BUT IT IS ESTIMATED THAT THE CHANGES EFFECTED BY THE FIRST TWO ADDENDA INCREASED THE COST OF THE WORK IN THE NET AMOUNT OF $27,000.

THE BID FORM, STANDARD FORM 21, PROVIDES ON PAGE 2:

"THE UNDERSIGNED ACKNOWLEDGES RECEIPT OF THE FOLLOWING ADDENDA TO THE DRAWINGS AND/OR SPECIFICATIONS (GIVE NUMBER AND DATE OF EACH): "

THERE FOLLOWS A SPACE FOR LISTING THE REQUESTED INFORMATION. ADDITION, THE INSTRUCTIONS TO BIDDERS, STANDARD FORM 22, PROVIDES IN PART AT PARAGRAPH 1:

"* * * ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INTERPRETATION MADE WILL BE IN THE FORM OF AN ADDENDUM TO THE SPECIFICATIONS OR DRAWINGS AND WILL BE FURNISHED TO ALL BIDDERS AND ITS RECEIPT BY THE BIDDER SHALL BE NOWLEDGED.'

RECEIPT OF THE ADDENDA WAS NOT ACKNOWLEDGED BY THE LOW BIDDER, THE E. W. HOWELL COMPANY, ON THE BID FORM. REGISTERED MAIL RECEIPTS FOR THE FIRST TWO ADDENDA WERE SIGNED BY AN EMPLOYEE OF THE LOW BIDDER WHO HAD AUTHORITY TO PICK UP MAIL AND SIGN FOR CERTIFIED OR REGISTERED MAIL.

UNDER PUBLIC ADVERTISING PROCEDURES THE GENERAL RULE IS THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NON-RESPONSIVE. COMP. GEN. 785. THE FACT THAT THE REGISTERED MAIL RECEIPT WAS SIGNED BY A REPRESENTATIVE OF THE FIRM IS NOT SUFFICIENT TO PERMIT AN EXCEPTION TO THE STATED RULE. SEE B-138242, JANUARY 2, 1959.

IN SUPPORT OF AN ALLEGATION OF ERROR IN ITS BID, THE LOW BIDDER SUBMITTED WORKSHEETS WHICH AFFIRMATIVELY INDICATE, AT LEAST IN SOME INSTANCES, THAT THE COST ESTIMATES PROVIDED BY PROSPECTIVE SUBCONTRACTORS INCLUDED THE MODIFICATIONS EFFECTED BY ADDENDA 1 AND 2. WE MUST CONSIDER, THEREFORE, WHETHER THE EVIDENCE IN THE WORKSHEETS, THAT THE ADDENDA WERE CONSIDERED IN THE PREPARATION OF THE BID, IS SUFFICIENT TO OVERCOME THE FAILURE TO ACKNOWLEDGE RECEIPT OF THE ADDENDA ON THE BID FORM. FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDA IN THE FORM AND MANNER PROVIDED HAS BEEN WAIVED WHERE IT WAS CLEAR ON THE FACE OF THE BID THAT ACCEPTANCE OF THE BID WOULD REQUIRE PERFORMANCE OF THE WORK COVERED BY THE ADDENDA. COMP. GEN. 581. WE ARE OF THE VIEW, HOWEVER, THAT THE EXCEPTION CANNOT BE EXTENDED TO PERMIT CONSIDERATION OF EVIDENCE EXTRANEOUS TO THE BID. HOLD OTHERWISE WOULD GIVE A BIDDER AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT MATERIAL ADDENDA HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. SUCH OPTION WOULD OBVIOUSLY PERMIT AN ADVANTAGE OVER CONFORMING BIDS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. B-131796, JUNE 14, 1957.

IN ACCORDANCE WITH THE FOREGOING WE CONCLUDE THAT THE LOW BID MUST BE REGARDED AS NON-RESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF THE ADDENDA IN THE BID DOCUMENTS. ACCORDINGLY, IT BECOMES UNNECESSARY TO CONSIDER THE ALLEGATION OF ERROR IN BID.