B-148184, APR. 3, 1962

B-148184, APR. 3, 1962

TO THE FLUORO ELECTRIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 14 AND LETTERS OF FEBRUARY 15 AND 16, 1962, PROTESTING AGAINST YOUR DISQUALIFICATION AS LOW BIDDER UNDER INVITATION NO. ENG-15-029-62-21 COVERING CONSTRUCTION OF A/C MAINTENANCE APRON LIGHTING (SAC) AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE INVITATION WAS ISSUED NOVEMBER 24, 1961, BY THE U.S. ARMY ENGINEER DISTRICT, LOUISVILLE, KENTUCKY, REQUESTING BIDS TO BE OPENED DECEMBER 20, 1961. ADDENDA NOS. 1, 2, 3 AND 4 WERE ISSUED DECEMBER 5, 6, 18 AND 19, RESPECTIVELY. ON PAGE 2 OF THE BID FORM IS A SPACE FOR ACKNOWLEDGING RECEIPT OF AMENDMENTS; AND ON PAGE I-4 OF THE INVITATION IS THE FOLLOWING PROVISION:

"6. BIDDERS ARE REQUIRED TO ACKNOWLEDGE RECEIPT OF ALL ADDENDA TO THIS INVITATION ON THE BID FORM (STANDARD FORM 21) IN THE SPACE PROVIDED, OR BY SEPARATE LETTER OR TELEGRAM PRIOR TO OPENING OF BIDS. FAILURE TO ACKNOWLEDGE ALL ADDENDA MAY CAUSE THE BID TO BE CONSIDERED NOT RESPONSIVE TO THE INVITATION, WHICH WOULD REQUIRE REJECTION OF THE BID.'

IN RESPONSE TO THE INVITATION, YOU SUBMITTED THE LOW BID IN THE AMOUNT OF $63,960. THE OTHER 11 BIDS RECEIVED RANGED FROM $66,872 (MUTUAL ELECTRIC COMPANY) TO $107,413.19. IN YOUR BID YOU ACKNOWLEDGED RECEIPT OF ADDENDA NOS. 1, 2 AND 3 ON DECEMBER 7, 8 AND 15, 1962, RESPECTIVELY, BUT DID NOT ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 4. THE CONTRACTING OFFICER REPORTS THAT AFTER CONSIDERATION OF THE MATTER IT WAS CONCLUDED THAT THE CHANGES REQUIRED BY ADDENDUM NO. 4 WOULD NOT MATERIALLY AFFECT THE COST OF PERFORMING THE CONTRACT WORK INSOFAR AS AS THE CHANGE IN TAPS AND THE CHANGE IN CORD ARE CONCERNED BUT WOULD INCREASE THE COST OF PERFORMANCE APPROXIMATELY $2,000 WITH RESPECT TO THE CHANGE TO HEAT AND IMPACT RESISTANT COVER GLASS ON FLOOD LIGHTS. ON DECEMBER 28, 1961, YOU WERE ADVISED BY TELEPHONE THAT YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 4 MIGHT RESULT IN REJECTION OF YOUR BID AS NONRESPONSIVE.

IN YOUR TELEGRAM OF DECEMBER 29, 1961, YOU PROTESTED REJECTION OF YOUR BID, STATING THAT ADDENDUM NO. 4 WAS NOT RECEIVED. HOWEVER, IN YOUR LETTER OF JANUARY 26, 1962, TO THE DISTRICT ENGINEER, EXPRESSING YOUR WILLINGNESS TO ACCEPT AN AWARD AT THE PRICE QUOTED IN YOUR BID, IT IS STATED:

"* * * WE TRUST YOU ARE INFORMED THAT WE NEGLECTED TO INDICATE ADDENDUM NO. 4 WITH OUR ORIGINAL PROPOSAL.'

IN A LETTER DATED JANUARY 4, 1962, TO THE CHIEF OF ENGINEERS, THE CONTRACTING OFFICER STATED:

"RECORDS OF THIS OFFICE INDICATED THAT ADDENDUM NO. 4 WAS MAILED TO ALL PLAN HOLDERS INCLUDING FLUORO ON 18 DECEMBER 1961. * * *"

ON JANUARY 4, 1962, THE MATTER WAS REFERRED TO THE OFFICE, CHIEF OF ENGINEERS, WHICH DENIED YOUR PROTEST BY SECOND INDORSEMENT DATED JANUARY 30, 1962. AWARD WAS MADE TO MUTUAL ELECTRIC COMPANY AS THE LOWEST RESPONSIVE BIDDER ON FEBRUARY 8, 1962.

EVEN THOUGH YOU OFFERED, AFTER BID OPENING, TO ACCEPT THE AWARD AND COMPLY WITH ADDENDUM NO. 4 WITHOUT MODIFYING THE BID PRICE, THE FACT REMAINS THAT THE MATTER AFFECTED BY ADDENDUM NO. 4 WAS A FACTOR NORMALLY BEARING UPON THE PRICE OR COST OF CARRYING OUT THE CONTRACT. SUCH VARIATION IS MATERIAL, THEREFORE, AND FAILURE TO REFERENCE IT IN THE BID MAY NOT BE WAIVED. 30 COMP. GEN. 179; 33 ID. 508.

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

FOR THE REASONS ABOVE SET OUT, THERE DOES NOT APPEAR ANY PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID AND MAKING THE AWARD TO ANOTHER BIDDER.