B-148790, JUN. 28, 1962

B-148790, JUN. 28, 1962

TO THE DINGER CONTRACTING CO.:

REFERENCE IS MADE TO YOUR TELEGRAMS OF APRIL 30, AND MAY 2 AND 17, 1962, CONCERNING YOUR PROTEST AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER INVITATION ENG-25-066-62-99 THAT SOLICITED BIDS FOR CONSTRUCTING TUNNEL BLAST DOORS AT LINCOLN AIR FORCE BASE AUXILIARY SITES.

THE BID YOU SUBMITTED UNDER THE SUBJECT INVITATION WAS REJECTED BECAUSE IT FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT 2.

YOU CONTEND THAT YOU NEVER RECEIVED THE AMENDMENT AND THAT, IN ANY EVENT, THE AMENDMENT WOULD NOT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE CONTRACT. ALSO, YOU POINT OUT THAT BIDDERS WERE REQUIRED TO ACKNOWLEDGE RECEIPT OF ALL AMENDMENTS ON THE FACE OF THE BID TRANSMITTAL ENVELOPE AND YOU CONTEND THAT CONTRACTING PERSONNEL SHOULD HAVE NOTICED THAT THE AMENDMENT WAS NOT ACKNOWLEDGED ON THE ENVELOPE AND NOTIFIED YOU SO THAT YOU COULD HAVE REMEDIED THE OMISSION. FOR THESE REASONS YOU FEEL THAT THE CONTRACTING OFFICER SHOULD HAVE WAIVED THE FAILURE TO ACKNOWLEDGE THE AMENDMENT. FURTHER, YOU PROTEST THE AWARD TO THE SECOND LOW BIDDER BECAUSE THE CONTRACT WAS SET ASIDE FOR SMALL BUSINESS AND YOU CONTEND THAT THE SUCCESSFUL BIDDER IS NOT A SMALL BUSINESS FIRM.

CONTRARY TO YOUR CONTENTION THAT THE AMENDMENT WOULD NOT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE CONTRACT, THE CONTRACTING OFFICER HAS DETERMINED THAT THE APPROXIMATE ADDITIONAL COST OF COMPLYING WITH THE REQUIREMENTS OF AMENDMENT 2 WOULD BE $392.78. IN ARRIVING AT THAT TOTAL CERTAIN INDIVIDUAL FACTORS WERE CONSIDERED BY THE CONTRACTING OFFICER:

"THE MOST SIGNIFICANT REQUIREMENT OF AMENDMENT NO. 2 WAS THE ADDITION TO PARAGRAPH SC-43 OF THE SPECIFICATIONS OF A REQUIREMENT THAT THE SPECIFICATIONS OF A REQUIREMENT THAT THE CONTRACTOR SUBMIT A SCHEDULE FOR ALL WORK REQUIRING ACCESS TO THE L.C.C.'S (LAUNCH CONTROL CENTER). THE AMENDMENT REQUIRED A SCHEDULE TO BE SUBMITTED A MINIMUM OF 48 HOURS PRIOR TO THE PROPOSED TIME OF PERFORMING WORK IN THAT AREA. EACH OF THE 12 MISSILE SITES HAS A SEPARATE L.C.C. IT WAS CONSIDERED THAT THE COST OF PREPARING 12 SCHEDULES ALONE WOULD AMOUNT TO APPROXIMATELY $60.00 ($5.00 EACH). THE AMENDMENT ALSO GAVE THE CONTRACTING OFFICER THE RIGHT TO WITHHOLD ACCESS TO THE AREAS. IF THE CONTRACTOR'S SCHEDULE WAS NOT APPROVED, IT COULD RESULT IN SOME DELAY TO THE ELECTRICIANS WHO WOULD PERFORM THE WORK IN THE L.C.C. THEREFORE, A CONTINGENCY ALLOWANCE OF $211.20 WAS ESTIMATED TO BE NECESSARY TO COVER THIS POSSIBILITY. PARAGRAPH SC-39 OF THE SPECIFICATIONS WAS NOT SUFFICIENTLY RESTRICTIVE TO ENCOMPASS THE REQUIREMENTS OF AMENDMENT NO. 2 WITH REGARD TO ACCESS TO THE L.C.C.-S. PARAGRAPH SC-39 MERELY REFERS TO THE PROGRESS CHART REQUIRED BY PARAGRAPH GC-5. SUCH PROGRESS CHART NEED NOT BE, AND ORDINARILY WOULD NOT BE, SUFFICIENTLY DETAILED AS TO COVER THE EXACT DATE UPON WHICH ACCESS WILL BE REQUESTED FOR ENTERING THE CONTROL AREAS. THE SCHEDULES REQUIRED BY THE ONE REFERRED TO IN PARAGRAPHS GC-5 AND SC 39. PARAGRAPH SC-39 DOES NOT GIVE THE CONTRACTING OFFICER THE RIGHT TO WITHHOLD ACCESS - THE AMENDMENT DOES.'

"THE CHANGE IN DRAWING NO. AFBMD-2-E-21 CONFORMED CERTAIN DETAILS OF THE DRAWING TO THE CONDUIT SCHEDULE. PREVIOUS TO THE ISSUANCE OF AMENDMENT NO. 2, THE DETAILS SHOWED 1/2 INCH CONDUIT AND THE SCHEDULE, 3/4 INCH. THIS WAS A CONFLICT. THE ITEM IS NOT MAJOR BUT THE DIFFERENCE IN COST BETWEEN THE TWO TYPES OF CONDUIT IS AN ESTIMATED $20.88.' TO THESE FACTORS WERE ADDED 12 PERCENT FOR INSURANCE ON LABOR, 10 PERCENT FOR OVERHEAD AND 10 PERCENT FOR PROFIT.

SINCE IT IS INDICATED THAT SOME OF THE ITEMS IN THE AMENDMENT COULD HAVE A BEARING ON PRICE, IT IS NOT CONSIDERED THAT IT WOULD BE PROPER TO WAIVE THE FAILURE TO ACKNOWLEDGE THE AMENDMENT. WHILE THE CONTRACTING OFFICER ESTIMATES THAT THE CHANGE IN PRICE MIGHT AMOUNT TO $392.78, THIS APPEARS TO BE A MATTER OF CONJECTURE ON HIS PART, SINCE IT IS NOT CERTAIN HOW MUCH WEIGHT ANY BIDDER MAY PLACE UPON THE REQUIREMENTS IMPOSED BY THE AMENDMENT IN ASSESSING ITS BID PRICE. WHILE AFTER THE EXPOSURE OF ALL BIDS YOU MAY BE WILLING TO COMPLY WITH AN AMENDMENT AT NO ADDITIONAL COST, THERE IS NO WAY OF ASCERTAINING WITH CERTAINTY WHAT YOUR INTENTION WOULD HAVE BEEN IF YOU HAD BEEN AWARE OF THE AMENDMENT BEFORE THE OPENING OF BIDS.

WE HAVE HELD REPEATEDLY THAT FAILURE TO ACKNOWLEDGE INVITATION AMENDMENTS THAT AFFECT PRICE, QUANTITY OR QUALITY OF THE CONTRACT CANNOT BE WAIVED AS AN INFORMAL DEVIATION. 37 COMP. GEN. 785 AND 40 ID. 126. THIS RULE APPLIES WHETHER THE BIDDER'S FAILURE TO RECEIVE THE AMENDMENT IS CAUSED BY THE PROCUREMENT OFFICE, THE MAILS OR BY SOME ACTION OF THE BIDDER. 145874, JUNE 5, 1961. THE DECISION OF MARCH 30, 1962, B-148239, WHICH AUTHORIZED THE WAIVER OF A FAILURE TO ACKNOWLEDGE AN AMENDMENT AND WHICH YOU SUGGEST HAS APPLICATION TO YOUR CASE, DOES NOT APPLY AND IS NOT IN CONFLICT WITH THE REFERENCED RULES. THAT CASE IS DISTINGUISHABLE ON THE FACTS FROM THE INSTANT CASE. IN THAT CASE THE BID CONTAINED AN OFFER TO FURNISH A QUANTITY OF SUPPLIES THAT INCLUDED AN AMOUNT ADDED TO THE INVITATION BY AN AMENDMENT THAT THE BIDDER COMPLAINED IT NEVER RECEIVED. WHEREAS IN THAT CASE THE BIDDER HAD COMMITTED ITSELF IN ADVANCE OF BID OPENING TO THE GOVERNMENT'S ENTIRE REQUIREMENTS, THERE IS NO INDICATION IN YOUR BID THAT YOU INTENDED TO BE BOUND BY THE GOVERNMENT'S REQUIREMENTS AS CHANGED BY THE AMENDMENT.

WHILE IT MAY BE THAT CONTRACTING PERSONNEL COULD HAVE ASCERTAINED UPON RECEIPT OF THE BID TRANSMITTAL ENVELOPE THAT YOU DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENT AND COULD HAVE CHECKED WITH YOU THEN TO FIND OUT WHETHER YOUR BID WAS BASED UPON ALL THE AMENDMENTS, THE PREPARATION OF BIDS IS EACH BIDDER'S RESPONSIBILITY AND THERE IS NO REQUIREMENT THAT CONTRACTING PERSONNEL TAKE THE SUGGESTED ACTION NOR WERE BIDDERS ADVISED THAT THE GOVERNMENT WOULD TAKE SUCH ACTION.

YOUR CONTENTION THAT THE SECOND LOW BIDDER IS NOT A SMALL-BUSINESS CONCERN WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION BY THE CONTRACTING OFFICER. THE SMALL BUSINESS ADMINISTRATION ADVISED THAT THE BIDDER "IS CONSIDERED SMALL BUSINESS FOR GOVERNMENT PROCUREMENT PURPOSES.' THEREFORE, IT APPEARS THAT YOUR CONTENTION IS NOT SUPPORTED BY THE AGENCY CHARGED WITH MAKING SMALL-BUSINESS SIZE DETERMINATIONS.

ACCORDINGLY, IN THE CIRCUMSTANCES, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION TO REJECT THE BID SUBMITTED BY YOUR COMPANY. CONSEQUENTLY, NO FURTHER ACTION WOULD BE WARRANTED BY US. ..END :