B-144147, NOV. 15, 1960

B-144147, NOV. 15, 1960

TO MONNING STEEL PARTITIONS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER, BOTH DATED OCTOBER 3, 1960, PROTESTING THE AWARD OF A CONTRACT TO ACOUSTI ENGINEERING OF ALABAMA, INC., UNDER INVITATION FOR BIDS NO. MSFC-61-49, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.

YOUR LOW BID UNDER THE SUBJECT INVITATION WAS REJECTED BECAUSE YOUR ACKNOWLEDGMENT OF THE RECEIPT OF AMENDMENT NO. 1 TO THE INVITATION WAS NOT RECEIVED BY THE ISSUING OFFICE PRIOR TO THE TIME SET FOR OPENING OF BIDS, OR 9 A.M., AUGUST 31, 1960. THIS AMENDMENT CHANGED THE SPECIFICATIONS WITH REGARD TO THE DOORS, DOOR HARDWARE AND ELECTRICAL CONVENIENCE OUTLETS. ALSO, IT WARNED BIDDERS THAT ACKNOWLEDGMENT OF THE RECEIPT OF THE AMENDMENT "MUST BE RECEIVED BY THE ISSUING OFFICE PRIOR TO THE TIME SET FOR BID OPENING.'

IN YOUR LETTER OF OCTOBER 3, 1960, YOU STATE THAT ROCKAWAY METAL PRODUCTS CORPORATION RECEIVED AN INVITATION FOR BIDS BUT SINCE THE FIRM DID NOT MANUFACTURE THE TYPE OF MATERIAL SPECIFIED FOR THE METAL PARTITIONS TO BE INSTALLED, IT FORWARDED THE INVITATION TO YOU. YOUR BID WAS RECEIVED PRIOR TO BID OPENING. AMENDMENT NO. 1 TO THE INVITATION, ISSUED AUGUST 26, 1960, WAS RECEIVED BY ROCKAWAY BUT YOU STATE THAT YOU DID NOT RECEIVE THE AMENDMENT FROM ROCKAWAY UNTIL APPROXIMATELY 10 A.M., ON AUGUST 31, 1960. ON SEPTEMBER 1, 1960, YOU SENT A TELEGRAM TO THE CONTRACTING OFFICE, ACKNOWLEDGING RECEIPT OF THE AMENDMENT AND STATED THAT THERE WOULD BE NO CHANGE IN THE AMOUNT OF YOUR BID. IT IS REPORTED THAT YOUR SIGNED ACKNOWLEDGMENT WAS RECEIVED ON SEPTEMBER 2, 1960. ALSO, IN YOUR LETTER YOU INVITE ATTENTION TO THE LAST PARAGRAPH OF PAGE 7 OF THE INVITATION WHICH PROVIDES THAT A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

IT IS WELL ESTABLISHED THAT THE FAILURE OF A BIDDER TO CERTIFY THAT HE HAS RECEIVED AN ADDENDUM TO THE INVITATION, EVEN IF HIS FAILURE TO DO SO IS DUE TO THE FACT THAT HE FAILED TO RECEIVE IT, CANNOT BE WAIVED AS AN INFORMAL DEVIATION IF THE ADDENDUM AFFECTS, AS IN THIS CASE, THE PRICE, QUANTITY OR QUALITY OF THE MATERIAL TO BE FURNISHED OR OF THE WORK TO BE PERFORMED. 33 COMP. GEN. 508; B-128645, SEPTEMBER 28, 1956; AND B-141188, DECEMBER 14, 1959.

WITH REGARD TO YOUR REFERENCE TO THE PROVISION IN THE INVITATION TO THE EFFECT THAT AN OTHERWISE SUCCESSFUL BIDDER MIGHT MODIFY HIS BID AND MAKE HIS BID MORE FAVORABLE TO THE GOVERNMENT, AND THAT SUCH A MODIFICATION COULD BE CONSIDERED AND ACCEPTED IT MAY BE POINTED OUT THAT SUCH PROVISION AUTHORIZES A MODIFICATION OF THE BID OF THE SUCCESSFUL BIDDER ONLY AND DOES NOT PERMIT MODIFICATION OF A BID IN ORDER TO QUALIFY AS A SUCCESSFUL BIDDER. OBVIOUSLY, IF AFTER THE BIDS ARE OPENED, THE AMOUNTS OF THE BIDS ARE KNOWN AND THE SUCCESSFUL BIDDER CAN BE ASCERTAINED, NO BIDDER WILL BE PREJUDICED BY THE SUCCESSFUL BIDDER OFFERING MORE FAVORABLE TERMS TO THE GOVERNMENT. ON THE OTHER HAND, WHEN THE BIDS ARE OPENED, AS IN THIS CASE, AND A BIDDER HAS FAILED TO ACKNOWLEDGE RECEIPT OF AN ADDENDUM CHANGING THE SPECIFICATIONS, IT GIVES HIM AN OPTION TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION AS AMENDED, OR TO PRECLUDE AN AWARD TO HIM BY ALLEGING THAT HE DID NOT RECEIVE THE ADDENDUM. THIS WOULD GIVE A BIDDER AN UNFAIR ADVANTAGE OVER OTHER BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WOULD BE CONTRARY TO THE PURPOSE SOUGHT TO BE ACHIEVED BY COMPETITIVE BIDDING.

IN VIEW OF THE FOREGOING, WE SEE NO PROPER BASIS FOR OBJECTING TO THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID.