B-146062, AUG. 18, 1961

B-146062, AUG. 18, 1961

TO NO-MAR CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 6 AND JULY 28, 1961, CONCERNING YOUR PROTEST AGAINST ACCEPTANCE OF THIS BID OF THE AMERICAN BEAUTY GRAIN CORPORATION UNDER GENERAL SERVICES ADMINISTRATION INVITATION NO. WA-NT-B- 1155-5-31-61.

THE INVITATION WAS ISSUED ON MAY 12, 1961, CALLING FOR BIDS FOR REFINISHING METAL AND WOOD OFFICE FURNITURE UNDER A TERM CONTRACT FOR THE PERIOD SEPTEMBER 1, 1961, OR FROM DATE OF AWARD, WHICHEVER IS LATER, THROUGH AUGUST 31, 1962. SPECIAL NOTICE NO. 1, DATED MAY 15, 1961, PROVIDED AS FOLLOWS:

"PROSPECTIVE BIDDERS ARE INFORMED TO DELETE ITEM 20, PAGE 13 IN ITS ENTIRETY, WHICH APPLIES ONLY TO METAL OFFICE FURNITURE. ALL OTHER TERMS AND CONDITIONS REMAIN THE SAME.'

ITEM 20, PAGE 13, STATED THESE REQUIREMENTS:

"20. EXPOSED BRONZE COLORED HARDWARE SHALL BE CADMIUM PLATED. EXPOSED ALUMINUM HARDWARE SHALL BE CLEANED, BUFFED AND POLISHED AND REFINISHED WITH WATER WHITE METAL LACQUER. (PAINTED OR GILTED HARDWARE IS NOT ACCEPTABLE).'

THE ITEM DELETED WAS IN THE SECTION OF THE INVITATION DEALING WITH SPECIFICATION METHOD 1, FOR RECONDITIONING AND REFINISHING WOOD OFFICE FURNITURE. THE REQUIREMENTS REGARDING TREATMENT OF EXPOSED HARDWARE ON METAL FURNITURE, WHICH WERE STATED IN PARAGRAPH 20, PAGE 16, UNDER SPECIFICATION METHOD NO. 2 FOR METAL FURNITURE, REMAINS IN EFFECT. THE PHRASE IN SPECIAL NOTICE NO. 1,"WHICH APPLIES ONLY TO METAL OFFICE FURNITURE," APPEARS TO HAVE BEEN INTENDED TO INFORM BIDDERS THAT THE REQUIREMENT FOR CADMIUM PLATING (WHICH WAS ITEM OR PARAGRAPH 20 IN THE SPECIFICATIONS FOR BOTH WOOD AND METAL FURNITURE) WAS INTENDED TO BE APPLICABLE ONLY TO METAL FURNITURE AND WAS THEREFORE BEING DELETED FROM THE SPECIFICATIONS FOR WOOD FURNITURE.

SPECIAL NOTICE NO. 2, DATED MAY 18, 1961, PROVIDED AS FOLLOWS:

"PARAGRAPH 20 PAGE 16 IS AMENDED TO INCLUDE THE FOLLOWING: "WHEN A CONTRACTOR IS REQUIRED TO CADMIUM PLATE EXPOSED BRONZE COLORED HARDWARE, HE SHALL BE PAID THE FOLLOWING ADDITIONAL AMOUNT: "

$0.25 PER FILE CABINET DRAWER

4.00 PER 60 INCH DESK

2.00 PER 45 INCH DESK

ALL OTHER TERMS AND CONDITIONS REMAIN THE SAME.'

EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. AT BID OPENING ON MAY 31, 1961, OSA FOUND THAT AMERICAN BEAUTY GRAIN RETURNED SPECIAL NOTICE NO. 1 WITH ITS BID AND THE REMAINING SEVEN BIDDERS RETURNED SPECIAL NOTICES NOS. 1 AND 2.

THE GENERAL RULE IS THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF A PROCUREMENT, FAILURE OF A BIDDER TO ACKNOWLEDGE ITS RECEIPT RENDERS THE BID NONRESPONSIVE. 40 COMP. GEN. 48, 37 ID. 785. IN APPLYING THIS GENERAL RULE, WE HAVE HELD THAT FAILURE TO ACKNOWLEDGE AN ADDENDUM WHICH DOES NOT GO TO THE SUBSTANCE OF THE BID AND WHICH DOES NOT PREJUDICE OTHER BIDDERS IS AN INFORMALITY WHICH MAY BE WAIVED. 34 COMP. GEN. 581.

IN THIS CASE, ALL BIDDERS ACKNOWLEDGED SPECIAL NOTICE NO. 1 WHICH DELETED THE REQUIREMENT FOR CADMIUM PLATING EXPOSED BRONZE HARDWARE AND BUFFING AND REFINISHING EXPOSED ALUMINUM HARDWARE ON WOOD FURNITURE. THE PRIMARY QUESTIONS TO BE CONSIDERED ARE WHETHER SPECIAL NOTICE NO. 2 AFFECTED THE PRICE, QUANTITY OR QUALITY OF THE WORK AND WHETHER THE BIDDERS WHO RETURNED SPECIAL NOTICE NO. 2 WERE PREJUDICED BY THE FAILURE OF AMERICAN BEAUTY GRAIN TO RETURN THAT SPECIAL NOTICE.

SPECIAL NOTICE NO. 2 MADE NO CHANGE IN THE QUALITY OR QUANTITY OF THE WORK TO BE PERFORMED UNDER THE CONTRACT. THE EFFECT OF SPECIAL NOTICE NO. 2, ALTHOUGH STATED IN TERMS OF PAYMENT TO THE CONTRACTOR FOR CERTAIN CADMIUM PLATING OPERATIONS, DID NOT GO TO THE SUBSTANCE OF THE PROCUREMENT BUT INSTEAD CHANGED ONLY THE METHOD OF PAYMENT FOR THE REQUIRED PLATING. PRIOR TO THE NOTICE, THE INVITATION REQUIRED THE SUCCESSFUL BIDDER TO BEAR THE COST OF THE CADMIUM PLATING, WHICH WOULD BE ONE OF THE COSTS USED TO COMPUTE THE TOTAL AMOUNT OF THE BID. AFTER RECEIPT OF THE NOTICE THAT ADDITIONAL AMOUNTS WOULD BE PAID FOR CERTAIN CADMIUM PLATING, A BIDDER WAS PLACED IN THE POSITION OF BEING ABLE TO REDUCE HIS BID BY THOSE STATED AMOUNTS, IF HE CHOSE, AND YET RECEIVE THE SAME PRICE FOR THE WORK, WHICH REMAINED UNCHANGED. IT IS OUR OPINION, THEREFORE, THAT THE BID OF AMERICAN BEAUTY GRAIN COULD HAVE BEEN REDUCED IF IT HAD BEEN COMPUTED ON THE BASIS OF SPECIAL NOTICE NO. 2. UNDER THE CIRCUMSTANCES, NONE OF THE SEVEN BIDDERS WHO RETURNED NOTICE NO. 2 WAS PREJUDICED BY AMERICAN BEAUTY GRAIN'S FAILURE TO RETURN THE NOTICE.

WE STATED IN 40 COMP. GEN. 48 THAT THE BASIS FOR THE GENERAL RULE REQUIRING ACKNOWLEDGMENT OF AN ADDENDUM IS TO PREVENT A BIDDER FROM HAVING AN OPTION TO DECIDE AFTER BID OPENING WHETHER TO BECOME ELIGIBLE FOR AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT A MATERIAL ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. THIS CASE, IT IS OUR OPINION THAT AMERICAN BEAUTY GRAIN DOES NOT HAVE SUCH AN OPTION. THAT COMPANY'S BID WAS AN OFFER TO PERFORM ALL THE WORK PRECISELY AS STATED IN THE INVITATION PRIOR TO THE SECOND AMENDMENT, WHICH MEANS THAT AMERICAN BEAUTY GRAIN OFFERED TO BEAR THE COST OF THE REQUIRED CADMIUM PLATING. ACCEPTANCE OF AMERICAN BEAUTY GRAIN'S BID WOULD NOT OBLIGATE THE GOVERNMENT TO MAKE THE PAYMENTS SET FORTH IN SPECIAL NOTICE NO. 2, BUT WOULD OBLIGATE THE COMPANY TO PERFORM THE WORK IN THE MANNER SET FORTH IN THE SPECIFICATIONS, WITH NO OPTION AVAILABLE TO ENABLE THE COMPANY TO AVOID PERFORMANCE.

FOR THE REASONS STATED, WE FEEL THAT THE FAILURE OF AMERICAN BEAUTY GRAIN TO RETURN SPECIAL NOTICE NO. 2 DID NOT GO TO THE SUBSTANCE OF THE BID, DID NOT PREJUDICE ANY OTHER BIDDER AND DID NOT ALLOW AN OPTION REGARDING PERFORMANCE. THEREFORE, WE FIND NO BASIS FOR OBJECTING TO THE INTENTION OF THE GENERAL SERVICES ADMINISTRATION TO CONSIDER THE BID OF AMERICAN BEAUTY GRAIN, NOTWITHSTANDING ITS FAILURE TO RETURN SPECIAL NOTICE NO. 2.