B-143378, AUGUST 25, 1960, 40 COMP. GEN. 126

B-143378: Aug 25, 1960

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WHICH IS RESPONSIVE TO THE ORIGINAL INVITATION BUT NOT RESPONSIVE TO THE MANDATORY REQUIREMENTS IN AN AMENDED INVITATION BECAUSE THE AMENDMENT WAS NOT TIMELY RECEIVED. 1960: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8. WAS AMENDED BY TWO AMENDMENTS DATED FEBRUARY 26 AND MARCH 28. WHICH IS PERTINENT TO THE PROTEST. BIDDERS WERE ADVISED BY NOTE 6 ON PAGE 7 OF THE AMENDMENT THAT THEY "MAY SUBMIT BIDS UPON EITHER OR BOTH OF THE ABOVE "A" OR "B" BASES. IT IS TO BE NOTED THAT AMENDMENT NO. 2 REPRESENTED A MATERIAL CHANGE FROM THE REQUIREMENTS OF THE ORIGINAL INVITATION WHICH REQUESTED BIDS ON 878 AND 119 UNITS. THE MANDATORY "C" (DESTINATION) BASIS OF BIDDING WAS NOT PROVIDED FOR. IT WAS ADMINISTRATIVELY DETERMINED THAT THE PROCUREMENT WOULD BE LIMITED TO THE BASIC QUANTITY OF 1.

B-143378, AUGUST 25, 1960, 40 COMP. GEN. 126

BIDS - LATE - FAILURE TO RECEIVE AMENDED INVITATION THE ACCEPTANCE OF A LOW BID, WHICH IS RESPONSIVE TO THE ORIGINAL INVITATION BUT NOT RESPONSIVE TO THE MANDATORY REQUIREMENTS IN AN AMENDED INVITATION BECAUSE THE AMENDMENT WAS NOT TIMELY RECEIVED, ON THE BASIS OF THE AMENDED BID RECEIVED AFTER OPENING WOULD BE PREJUDICIAL TO THE OTHER BIDDERS AND, ALTHOUGH THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF INVITATIONS AND AMENDMENTS, FAILURE IN A PARTICULAR CASE DOES NOT WARRANT THE CONSIDERATION OF AN AMENDED BID RECEIVED AFTER THE OPENING TIME.

TO JOHN H. BRIGLEB, AUGUST 25, 1960:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1960, WITH ENCLOSURES, PROTESTING, ON BEHALF OF THE GENERAL EQUIPMENT COMPANY, AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DA-ENG-11 184-60-AF-441-JD, AS AMENDED, TO A BIDDER OTHER THAN YOUR CLIENT.

THE INVITATION FOR BIDS ISSUED ON FEBRUARY 2, 1960, WAS AMENDED BY TWO AMENDMENTS DATED FEBRUARY 26 AND MARCH 28, 1960. THE EARLIER AMENDMENT EXTENDED THE ACCEPTANCE PERIOD FROM 60 TO 90 CALENDAR DAYS AND ALSO EXTENDED THE OPENING DATE TO APRIL 15, 1960. THE LATER AMENDMENT, WHICH IS PERTINENT TO THE PROTEST, DELETED PAGES 3 THROUGH 6 OF THE INVITATION TO COVER A BASIC QUANTITY OF 1,000 UNITS OF GASOLINE GENERATOR SETS, BATTERY CHARGING, PORTABLE, AIR-COOLED, 2 KILOWATTS, AND REQUESTED BIDS AS FOLLOWS:

ITEM 1--- 880 UNITS ON EITHER AN "A" (ORIGIN) OR "B" (DESTINATION) BASIS OR BOTH BASES AT BIDDER'S OPTION.

119 UNITS ON A "C" (DESTINATION) BASIS ONLY.

ITEM A--- 1 PREPRODUCTION UNIT ON AN F.O.B. DESTINATION BASIS ONLY.

BIDDERS WERE ADVISED BY NOTE 6 ON PAGE 7 OF THE AMENDMENT THAT THEY "MAY SUBMIT BIDS UPON EITHER OR BOTH OF THE ABOVE "A" OR "B" BASES, BUT MUST SUBMIT A BID UNDER THE "C" BASE.' IT IS TO BE NOTED THAT AMENDMENT NO. 2 REPRESENTED A MATERIAL CHANGE FROM THE REQUIREMENTS OF THE ORIGINAL INVITATION WHICH REQUESTED BIDS ON 878 AND 119 UNITS, RESPECTIVELY, ON AN "A" (ORIGIN) OR "B" (DESTINATION) BASIS, OR BOTH, IF THE BIDDER SO DESIRED, BUT THE MANDATORY "C" (DESTINATION) BASIS OF BIDDING WAS NOT PROVIDED FOR. THE INVITATION FURTHER PROVIDED THAT ONLY A SINGLE AWARD WOULD BE MADE AND THAT MULTIPLE AWARDS WOULD NOT BE MADE.

PRIOR TO THE OPENING OF BIDS, IT WAS ADMINISTRATIVELY DETERMINED THAT THE PROCUREMENT WOULD BE LIMITED TO THE BASIC QUANTITY OF 1,000 UNITS AND THAT AN AWARD WOULD NOT BE MADE UNDER ANY OF THE OTHER FOUR QUANTITY RANGES.

IN TABULATING AND EVALUATING THE 11 BIDS RECEIVED AT THE SCHEDULED OPENING TIME ON APRIL 15, 1960, IT WAS NOTED THAT THE GENERAL EQUIPMENT COMPANY AND AMERICAN TECHNICAL INDUSTRIES, INC., THOUGH LOW ON CERTAIN QUANTITY RANGES, HAD NOT BID ON ALL ITEMS SET OUT IN THE INVITATION, AS AMENDED. YOUR CLIENT HAD FAILED TO SUBMIT AN EXECUTED AMENDMENT NO. 2 WITH ITS BID AND CONSEQUENTLY DID NOT BID ON THE 119 UNITS CALLED FOR UNDER THE "C" (DESTINATION) BASIS OF ITEM 1. WHILE YOUR CLIENT, BY TELEGRAM RECEIVED IN THE PROCUREMENT OFFICE PRIOR TO THE BID TIME ON APRIL 15, ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 2 AND CONFIRMED ITS BID PRICES FOR CERTAIN QUANTITY REQUIREMENTS, IT FAILED TO INCLUDE ITS BID PRICE ON THE MANDATORY "C" (DESTINATION) QUANTITY OF 119 UNITS.

ON APRIL 19, 1960--- SUBSEQUENT TO THE SCHEDULED BID OPENING DATE--- COPIES OF AMENDMENT NO. 2 WERE RECEIVED FROM YOUR CLIENT WHICH SHOWED THEREON ITS BID PRICE UNDER THE "C" (DESTINATION) BASIS. THE ENVELOPE CONTAINING THE EXECUTED AMENDMENT BORE A CANCELLATION STAMP SHOWING THAT IT WAS MAILED FROM CONNEAUT, OHIO, ON APRIL 18, 1960. HENCE, IT COULD NOT BE REGARDED AS AN ACCEPTABLE BID MODIFICATION UNDER PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THE INVITATION.

SINCE, UNDER THE TERMS OF THE INVITATION, AN AWARD COULD BE MADE ONLY ON A LOT BASIS TO A LOW RESPONSIVE BIDDER FOR ALL ITEMS, AND SINCE YOUR CLIENT FAILED TO BID ON THE 119 UNITS CALLED FOR UNDER THE MANDATORY "C" (DESTINATION) BASIS, ITS BID COULD NOT BE EVALUATED AND WAS, ADMINISTRATIVELY CONSIDERED AS NONRESPONSIVE. THE SAME DETERMINATION WAS MADE WITH RESPECT TO THE BID SUBMITTED BY AMERICAN TECHNICAL INDUSTRIES INC.

YOU CONTEND, ON BEHALF OF THE GENERAL EQUIPMENT COMPANY, THAT IT WAS RESPONSIVE TO THE INVITATION AND TO THE AMENDMENTS THEREUNDER, AND THAT IT WAS THE DUTY OF THE PROCUREMENT OFFICE TO FURNISH A COPY OF AMENDMENT NO. 2 TO YOUR CLIENT IN AMPLE TIME TO PREPARE A PROPER BID IN RESPONSE THERETO.

AMENDMENT NO. 2 PROVIDED ON ITS FACE THAT:

BIDDERS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SET FOR BID OPENING, BY ONE OF THE FOLLOWING METHODS:

(A) BY SIGNING AND RETURNING THREE COPIES OF THIS AMENDMENT.

(B) BY A NOTATION ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE BID SUBMITTED.

(C) BY SEPARATE LETTER OR TELEGRAM WHICH INCLUDES A REFERENCE TO THE IFB NUMBER AND AMENDMENT NUMBER.

FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE FIXED FOR OPENING OF BIDS MAY RESULT IN THE REJECTION OF YOUR BID. IF, BY VIRTUE OF THIS AMENDMENT, IT IS DESIRED TO MODIFY A BID ALREADY SUBMITTED, SUCH MODIFICATION MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THIS AMENDMENT AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED ABOVE.

ALTHOUGH IT WAS UNFORTUNATE THAT YOUR CLIENT WAS NOT SENT COPIES OF AMENDMENT NO. 2 TIMELY, THE FACT REMAINS THAT THE GENERAL EQUIPMENT COMPANY DID NOT, PRIOR TO THE SCHEDULED OPENING OF BIDS, BID UPON THE MANDATORY "C" (DESTINATION) BASIS CALLED FOR BY THE AMENDMENT AND, THEREFORE, THE BID WAS NONRESPONSIVE TO THE INVITATION, AS AMENDED. WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR A MODIFICATION THEREOF AFTER THE TIME FIXED FOR OPENING. SEE 37 COMP. GEN. 785. MOREOVER, SINCE YOUR CLIENT'S BID WAS RESPONSIVE ONLY TO THE ORIGINAL INVITATION BUT NOT TO THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT AS EMBODIED IN AMENDMENT NO. 2, THE ACCEPTANCE OF SUCH A BID ON THE BASIS OF THE AMENDMENT RECEIVED AFTER THE OPENING OF BIDS WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, WHO WERE ENTIRELY RESPONSIVE, AND TO THE GOVERNMENT AS WELL. UNDER SUCH CIRCUMSTANCES, THE CONTRACTING OFFICER WAS WITHOUT LEGAL AUTHORITY TO ACCEPT SUCH A BID.

ACCORDINGLY, YOU ARE ADVISED THAT THE COPIES OF THE AMENDMENT EXECUTED BY THE GENERAL EQUIPMENT COMPANY ON THE DATE SET FOR THE OPENING OF BIDS BUT NOT RECEIVED UNTIL THEREAFTER PROPERLY WERE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION, AS AMENDED.