B-149264, SEP. 6, 1962

B-149264, SEP. 6, 1962

TO MR. WINTON M. BLOUNT:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 23, 1962, PROTESTING AGAINST THE REJECTION OF YOUR COMPANY'S LOW BID FOR FAILURE TO ACKNOWLEDGE IN IT RECEIPT OF CERTAIN AMENDMENTS TO THE SPECIFICATIONS FOR GSA PROJECT 09125.

YOU STATE THAT THE CHANGES ENUMERATED IN THE AMENDMENTS WERE NOT OF MONETARY CONSEQUENCE. THEREFORE, YOU CONTEND THAT SINCE YOUR FIRM RECEIVED THE AMENDMENTS AND CONSIDERED THEM IN THE PREPARATION OF ITS BID, THE FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENTS ON THE BID SHOULD HAVE BEEN WAIVED AS AN INFORMALITY IN BID.

CONTRARY TO YOUR CONTENTION THAT THE AMENDMENTS WERE OF NO MONETARY CONSEQUENCE, THE ADMINISTRATIVE AGENCY HAS ESTIMATED THAT THE CHANGES BROUGHT ABOUT BY AMENDMENTS 3 AND 4 WOULD AFFECT THE PRICE OF THE WORK BY ABOUT $11,082, SUBSTANTIALLY MORE THAN THE $2,991 DIFFERENCE BETWEEN THE BID OF YOUR COMPANY AND THE NEXT LOW BIDDER. THE AGENCY HAS POINTED OUT THAT WHILE IT WAS ORIGINALLY ASSUMED, AS STATED IN PARAGRAPH 6-05H OF THE SPECIFICATIONS, THAT THE MATERIAL TO BE EXCAVATED COULD BE REMOVED WITHOUT EXPLOSIVES OR CONTINUOUS DRILLING, IT WAS SUBSEQUENTLY LEARNED THAT BLASTING OR CONTINUOUS DRILLING WOULD BE REQUIRED TO LOOSEN ROCK FOR EXCAVATION. BECAUSE OF THE CHANGE IN EXCAVATION PROCEDURES, AMENDMENT 3, DELETING PARAGRAPH 6-05H, WAS ISSUED. THE AGENCY HAS ESTIMATED THAT A MINIMUM 1,000 CUBIC YARDS OF ROCK WOULD REQUIRE LOOSENING AT A MINIMUM ADDITIONAL COST OF $10,000. FURTHER IT HAS ESTIMATED THAT AMENDMENT 4, WHICH SPECIFIED CHANGES TO BE MADE REGARDING VENETIAN BLINDS, MECHANICAL AND ELECTRICAL WORK AND AIR-CONDITIONING AND VENTILATION WORK, WOULD INCREASE THE COST OF THE PROJECT BY $1,082.

WHILE YOU CONTEND THAT THE FIRM HAD RECEIVED THE AMENDMENTS AND HAD TAKEN THEM INTO CONSIDERATION IN PREPARING THE BID, THE FACT REMAINS THAT THE MATTERS AFFECTED BY THE AMENDMENTS WERE FACTORS NORMALLY BEARING UPON THE PRICE OR COST OF THE WORK. THE DECISIONS OF THIS OFFICE HAVE ESTABLISHED THE RULE THAT A FAILURE TO ACKNOWLEDGE AMENDMENTS THAT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE WORK IS A MATERIAL DEVIATION RENDERING THE BID SUBMITTED NONRESPONSIVE. B 141299, DECEMBER 14, 1959.

THE RATIONALE FOR THIS RULE IS SET OUT IN DECISION B-131796, JUNE 14, 1957, AS FOLLOWS:

"A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE TWO PARTIES. IT IS WELL RECOGNIZED THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE. YOUR OFFER PROPOSED ONLY TO COMPLY WITH THE PROVISIONS OF THE ORIGINAL INVITATION. THEREFORE, THE GOVERNMENT COULD NOT, WITHOUT YOUR CONSENT, HAVE ACCEPTED YOUR OFFER AND REQUIRED PERFORMANCE IN ACCORDANCE WITH THE INVITATION AS AMENDED BY THE ADDENDUM. TO GIVE YOU AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION AS AMENDED, OR TO PRECLUDE AWARD TO YOU BY ALLEGING NON-RECEIPT OF THE ADDENDUM, OR SAYING NOTHING, WOULD GIVE YOU AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION. SUCH ADVANTAGE WOULD BE CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT.' THE SAME RATIONALE WAS EMPLOYED IN B 128645, SEPTEMBER 28, 1956, AND B-140412 OF SEPTEMBER 30, 1959, BOTH DEALING WITH BIDS THAT FAILED TO CONTAIN ACKNOWLEDGMENT OF AMENDMENTS CONTAINING MATERIAL CHANGES IN THE INVITATION FOR BIDS.

IN VIEW OF THE FOREGOING, WE SEE NO PROPER BASIS FOR OUR OFFICE TO OBJECT TO THE REJECTION OF THE BID SUBMITTED BY YOUR COMPANY.