B-144784, JUN. 21, 1961

B-144784, JUN. 21, 1961

TO MISHARA CONSTRUCTION COMPANY, INC.:

WE REFER TO YOUR LETTER OF JANUARY 9, 1961, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS SERIAL NO. ENG-19-016-61-30.

THE INVITATION WAS ISSUED ON NOVEMBER 3, 1960, BY THE CORPS OF ENGINEERS, WALTHAM, MASSACHUSETTS, WITH THE AWARD SET ASIDE FOR SMALL BUSINESS, CALLING IN PART FOR MODIFICATIONS TO ADC STORAGE MAGAZINES, DOW AIR FORCE BASE, BANGOR, MAINE (SCHEDULE I). THE INVITATION REQUIRED BIDDERS TO ACKNOWLEDGE RECEIPT OF ALL ADDENDA AND STATED THAT FAILURE TO ACKNOWLEDGE MIGHT CAUSE REJECTION OF THE BID. ADDENDUM NO. 1, DATED NOVEMBER 8, 1960, WAS THE ONLY ADDENDUM ISSUED UNDER THE SUBJECT INVITATION.

BIDS WERE OPENED ON NOVEMBER 17, 1960, AND FOUR BIDS WERE RECEIVED APPLICABLE TO SCHEDULE I, DOW AIR FORCE BASE, AS FOLLOWS:

CHART

BIDDER TOTAL SCHEDULE I

DAWSON, JOHNSON AND KIBLER, INC. $13,322.00

EARL E. BRILL 16,063.80

MISHARA CONSTRUCTION COMPANY, INC. 16,786.00

A. BELANGER AND SONS, INC. 18,215.00

BY A DETERMINATION OF THE SMALL BUSINESS ADMINISTRATION, THE FIRM OF DAWSON, JOHNSON AND KIBLER WAS RULED TO BE AN AFFILIATE OF A LARGE BUSINESS CONCERN AND, CONSEQUENTLY, UNQUALIFIED TO BID. ACCORDINGLY, THE CONTRACTING OFFICER MADE A DETERMINATION THAT THE LOW BID OF THAT FIRM WAS NONRESPONSIVE.

THE SECOND LOW BIDDER, EARL E. BRILL, FAILED TO ACKNOWLEDGE RECEIPT OF THE ADDENDUM. BY LETTER OF DECEMBER 5, 1960, BRILL STATED IN REGARD TO THIS MATTER THAT THE REQUIREMENTS OF THE ADDENDUM WERE INCLUDED IN HIS BID FIGURES AND THAT HE THEREFORE ACKNOWLEDGED ADDENDUM NO. 1.

ON DECEMBER 23, 1960, AFTER A DETERMINATION BY THE CONTRACTING OFFICER THAT THE FAILURE TO ACKNOWLEDGE ADDENDUM NO. 1 WAS NOT PREJUDICIAL TO OTHER BIDDERS, EARL E. BRILL WAS GIVEN THE AWARD FOR SCHEDULE I IN THE AMOUNT OF $16,063.80.

WITH REGARD TO ADDENDUM NO. 1, PARAGRAPH 1 (A) THEREOF MERELY CHANGED A DRAWING NUMBER. PARAGRAPH 1 (B) 1 (I) SPECIFIED THE USE OF BRONZE SCREWS (APPROXIMATELY 48 SCREWS ARE INVOLVED). PARAGRAPH 1 (B) 1 (II) PROVIDED THAT THE MATERIAL USED FOR STRAPS SHOULD BE THE SAME MATERIAL AS USED FOR DOWNSPOUTS, AND PARAGRAPH 1 (B) 1 (III) PROVIDED FOR THE SUBMISSION OF SHOP DRAWINGS FOR APPROVAL. FINALLY, PARAGRAPH 1 (B) 2 OF THE ADDENDUM PROVIDED FOR THE CORRECTION OF A TYPOGRAPHICAL ERROR AND PARAGRAPH 1 (C) IS NOT APPLICABLE TO THE WORK UNDER SCHEDULE I.

YOU CONTEND THAT THE ADDENDUM CHANGE RELATING TO THE USE OF BRONZE SCREWS INCREASED THE COST OF PERFORMANCE BECAUSE IT PREVENTED THE USE OF POWDER ACTUATED TOOLS. ALSO, THE REQUIREMENT THAT COMPLETE SHOP DRAWINGS BE SUBMITTED FOR APPROVAL ALLEGEDLY PLACED AN ADDITIONAL BURDEN ON THE CONTRACTOR RESULTING IN INCREASED COSTS. THE NET EFFECT OF THE CHANGES YOU ALLEGE, WAS TO AFFECT THE PRICE, QUANTITY OR QUALITY OF THE WORK SO AS TO RENDER THE BRILL'S BID NONRESPONSIVE IN ACCORDANCE WITH THE RULE CITED IN 37 COMP. GEN. 785.

THE CONTRACTING OFFICER ADVISES THAT THE SPECIFICATIONS REQUIRE THAT THE GUTTERS SHALL BE SECURED BY BRONZE SCREWS OR BOLTS. WITH RESPECT TO THE USE OF POWDER-ACTUATED TOOLS, IT IS THE CONTRACTING OFFICER'S OPINION THAT THE USE OF SUCH TOOL ON THE DOWNSPOUT STRAPS DOES NOT RESULT IN ANY NET SAVINGS OF COST BECAUSE ITS PROPOSED USE WOULD REQUIRE TWO METHODS, I.E., THE USE OF BRONZE SCREWS ON GUTTERS AND USE OF POWDER-ACTUATED TOOLS AND FASTENERS FOR DOWNSPOUT STRAPS. THIS WOULD ALLEGEDLY INCREASE EXPENSES BY REQUIRING SCHEDULING AND SUPERVISING OF TWO DIFFERENT TYPES OF OPERATIONS AND ANY SAVINGS IN COST BY USE OF THE POWER-ACTUATED TOOL AND FASTENERS WOULD BE OFFSET BY THE EXPENSES OF THESE TWO OPERATIONS.

AS FOR THE REQUIRED SUBMISSION OF SHOP DRAWINGS, THE CONTRACTING OFFICER STATES THAT NO ADDED BURDEN OR WORK WAS PLACED UPON BIDDERS BECAUSE A CONTRACTOR, OF NECESSITY, WOULD HAVE TO HAVE SHOP DRAWINGS PRIOR TO FABRICATION FOR HIS OWN BENEFIT, AND WHATEVER ADDITIONAL COST THERE MAY HAVE BEEN COULD ONLY BE THE EXPENSE OF POSTAGE OF THE SHOP DRAWINGS TO THE CONTRACTING OFFICER FOR APPROVAL PRIOR TO FABRICATION.

IN 37 COMP. GEN. 785 WE STATED THE GENERAL RULE THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT IN THE MANNER REQUIRED CANNOT BE WAIVED. WE HAVE ALSO HELD THAT WHERE AN AMENDMENT DOES NOT AS A PRACTICAL MATTER AFFECT THE COST OF THE WORK OR ANY OTHER MATERIAL TERM OF THE CONTRACT, FAILURE TO ACKNOWLEDGE RECEIPT OF THAT AMENDMENT MAY BE TREATED AS AN INFORMALITY AND MAY BE WAIVED FOR PURPOSES OF AWARD. 144185, JANUARY 25, 1961; SEE 34 COMP. GEN. 581. THE PROVISIONS OF PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION ARE TO THE SAME EFFECT. YOU ESTIMATE THAT THE COMBINED INCREASED COST RESULTING FROM THE ADDENDA IS IN THE VICINITY OF $194. THE ADMINISTRATIVE OPINION IS THAT NO ADDITIONAL COSTS WERE INVOLVED. ON THESE FACTS WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT THE ADDENDA PROVISIONS WERE OF A SUBSTANTIAL NATURE WITH REGARD TO THE OVERALL COST OF THE WORK OR THAT THE FAILURE OF THE LOW BIDDER TO EXECUTE THE ADDENDUM PREJUDICED OTHER BIDDERS. (BRILL'S BID OF $16,063.80 IS $722.20 LOWER THAN YOUR BID OF $16,786).

ACCORDINGLY, AND IN VIEW OF THE FACT THAT THE WORK IS NOW PRACTICALLY COMPLETED, YOUR PROTEST IS DENIED.