B-149315, AUG. 28, 1962

B-149315: Aug 28, 1962

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 16. SIX BIDS WERE RECEIVED UNDER THE SUBJECT INVITATION. THE LOW BID SUBMITTED BY YOUR COMPANY WAS LOWER THAN THE NEXT LOW BID BY $1. LEVER AND COMPANY BID IS CONSIDERED NON RESPONSIVE TO THE INVITATION FOR BIDS.'. YOU PROTEST THE ADMINISTRATIVE REJECTION OF THE BID SUBMITTED BY YOUR COMPANY BECAUSE YOU SAY YOU NEVER RECEIVED THE AMENDMENT BEFORE THE OPENING OF BIDS NOR WERE YOU INVITED TO EXAMINE IT AFTER OPENING OF BIDS SO YOU COULD ADVISE WHETHER OR NOT IT AFFECTED YOUR BID PRICE. YOU STATE THAT YOU OPERATE A UNION SHOP AND ANY OF THE WORK YOU WOULD HAVE SUBCONTRACTED WOULD HAVE BEEN LET TO UNION SUBCONTRACTORS. IN THAT CONNECTION YOU SAY THAT THE WAGE RATES YOU AND YOUR SUBCONTRACTORS PAY ARE USUALLY HIGHER THAN THE RATES INCLUDED IN THE CONTRACT SCHEDULE OF WAGE RATES.

B-149315, AUG. 28, 1962

TO JACK Q. LEVER AND COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1962, AND PREVIOUS CORRESPONDENCE RECEIVED, PROTESTING THE REJECTION OF THE LOW BID YOU SUBMITTED UNDER INVITATION GS-R3-B-11156 THAT COVERED THE AIR CONDITIONING OF THE CAFETERIA AT THE NAVY BUILDING IN WASHINGTON, D.C.

SIX BIDS WERE RECEIVED UNDER THE SUBJECT INVITATION. THE LOW BID SUBMITTED BY YOUR COMPANY WAS LOWER THAN THE NEXT LOW BID BY $1,357. THE GSA BOARD OF AWARD CONSIDERED THE BIDS FOR AWARD AND OBSERVED:

"THE LOW BIDDER FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1. THIS AMENDMENT RAISED THE RATE OF WATE IN VARIOUS TRADES. DUE TO THIS BIDDER'S FAILURE, THE JACK Q. LEVER AND COMPANY BID IS CONSIDERED NON RESPONSIVE TO THE INVITATION FOR BIDS.'

YOU PROTEST THE ADMINISTRATIVE REJECTION OF THE BID SUBMITTED BY YOUR COMPANY BECAUSE YOU SAY YOU NEVER RECEIVED THE AMENDMENT BEFORE THE OPENING OF BIDS NOR WERE YOU INVITED TO EXAMINE IT AFTER OPENING OF BIDS SO YOU COULD ADVISE WHETHER OR NOT IT AFFECTED YOUR BID PRICE. FURTHER, YOU STATE THAT YOU OPERATE A UNION SHOP AND ANY OF THE WORK YOU WOULD HAVE SUBCONTRACTED WOULD HAVE BEEN LET TO UNION SUBCONTRACTORS. IN THAT CONNECTION YOU SAY THAT THE WAGE RATES YOU AND YOUR SUBCONTRACTORS PAY ARE USUALLY HIGHER THAN THE RATES INCLUDED IN THE CONTRACT SCHEDULE OF WAGE RATES. IN ADDITION, YOU STATE THAT, AFTER THE REJECTION OF YOUR BID CAME TO YOUR ATTENTION, ANOTHER BIDDER LET YOU EXAMINE THE AMENDMENT AND YOU DETERMINED THAT OF THE 25 TRADE RATES THAT WERE INCREASED ONLY 3 COULD HAVE BEEN USED IN THE PERFORMANCE OF THE CONTRACT SO THAT ANY INCREASE IN COST BECAUSE OF THE CHANGE IN RATES WOULD HAVE BEEN NEGLIGIBLE. AS A RESULT, YOU SUGGEST THAT THE CONTRACTING AGENCY SHOULD HAVE WAIVED THE FAILURE TO ACKNOWLEDGE THE AMENDMENT AS A MINOR INFORMALITY IN BID IN ACCORDANCE WITH PARAGRAPH 10 OF THE INSTRUCTIONS TO BIDDERS OR YOU SHOULD HAVE BEEN ALLOWED TO CONFORM YOUR BID TO THE INVITATION AS AMENDED IN ACCORDANCE WITH INSTRUCTIONS TO BIDDERS IN PARAGRAPH 7 WHICH PROVIDES THAT A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

LIKE CONTENTIONS IN SIMILAR CASES HAVE HERETOFORE BEEN CONSIDERED BY OUR OFFICE. IN DECISION B-131796, JUNE 14, 1957, THERE WAS CONSIDERED THE PROTEST OF A BIDDER WHO FAILED TO ACKNOWLEDGE AN AMENDMENT THAT INCREASED THE MINIMUM WAGE RATES. THE BIDDER CONTENDED THAT THE INCREASE INVOLVED IN THE AMENDMENT WAS $100 AND SUGGESTED THAT INASMUCH AS THIS WAS LESS THAN THE $350 SPREAD BETWEEN IT AND THE NEXT LOW BIDDER AND AS IT WAS ALREADY PAYING EMPLOYEES MORE THAN THE MINIMUM RATES PRESCRIBED IN THE AMENDMENT IT SHOULD BE AWARDED THE CONTRACT AT ITS BID PRICE. IN RESPONSE TO THESE CONTENTIONS, IT WAS STATED:

"YOUR FAILURE TO ACKNOWLEDGE THE ADDENDUM RESULTED IN A VARIANCE BETWEEN YOUR BID AND THE TERMS OF THE INVITATION AS AMENDED. WHERE THE VARIATION GOES TO PRICE, QUANTITY OR QUALITY, IT IS CONSIDERED MATERIAL AND THE BID CONTAINING SUCH VARIATION MUST BE DEEMED NOT RESPONSIVE TO THE INVITATION AND THEREFORE BE DISREGARDED.

"OBVIOUSLY, AN INCREASE IN THE STIPULATED MINIMUM WAGE RATE COULD AFFECT THE PRICE QUOTED BY A BIDDER. WHILE YOU CONTEND THAT YOU WERE ALREADY PAYING WAGES IN EXCESS OF THE MINIMA CONTAINED IN THE ADDENDUM, THE FACT REMAINS THAT THE MATTER AFFECTED BY THE ADDENDUM WAS A FACTOR NORMALLY BEARING UPON THE PRICE OR COST OF THE WORK. SUCH VARIATION IS MATERIAL, THEREFORE, AND FAILURE TO REFERENCE IT IN THE BID COULD NOT BE WAIVED. COMP. GEN. 508.

"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.'

IN DECISION B-146354, NOVEMBER 27, 1961, THERE WAS CONSIDERED THE PROTEST OF A BIDDER WHO ALLEGED THAT THE AMENDMENT INCREASING THE WAGE RATES HAD NOT BEEN RECEIVED AND THAT IT COULD NOT AFFECT THE BID ANYWAY AS THE CHANGES WERE SLIGHT AND DID NOT AFFECT THE MAJOR CRAFTS REQUIRED FOR THE JOB. IN THAT DECISION, IT WAS SAID:

"THE GENERAL RULE IS 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 BY THE INVITATION OR AMENDMENT CANNOT BE WAIVED.'

UPON REVIEW OF THE FACTS IN THE LIGHT OF THE QUOTED RULE, IT WAS CONCLUDED THAT THERE WAS NO REASONABLE BASIS TO QUESTION THE REJECTION OF THE BID.

OTHER DECISIONS OF OUR OFFICE ALSO HAVE INDICATED THAT THE ESTABLISHED RULE IS THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE AN AMENDMENT AFFECTING PRICE OF THE PROCUREMENT, EITHER BECAUSE THE CONTRACTING OFFICE DID NOT SEND THE AMENDMENT, BECAUSE THE BIDDER DID NOT RECEIVE IT OR BECAUSE THE BIDDER OVERLOOKED IT, CANNOT BE WAIVED AS AN INFORMAL DEVIATION. 148790, JUNE 28, 1962; B-145874, JUNE 5, 1961; AND B-141188, DECEMBER 14, 1959.

FURTHER, THE FEDERAL PROCUREMENT REGULATIONS, SECTION 1-2.405 IN TITLE 41 OF THE CODE OF FEDERAL REGULATIONS, AUTHORIZE THE WAIVER OF A BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION ONLY IF---

"/1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID HEREON; OR

"/2) THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE ITEMS BID UPON, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PROCURING ACTIVITY.'

THE CONTENTION THAT PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS COULD HAVE BEEN APPLIED TO PERMIT YOU TO MODIFY YOUR BID TO INCLUDE THE WAGE RATE AMENDMENT ALSO HAS BEEN CONSIDERED BY OUR OFFICE BEFORE. IN B 144147, NOVEMBER 15, 1960, IT WAS STATED:

"WITH REGARD TO YOUR REFERENCE TO THE PROVISION IN THE INVITATION TO THE EFFECT THAT AN OTHERWISE SUCCESSFUL BIDDER MIGHT MODIFY HIS BID AND MAKE HIS BID MORE FAVORABLE TO THE GOVERNMENT, AND THAT SUCH A MODIFICATION COULD BE CONSIDERED AND ACCEPTED, IT MAY BE POINTED OUT THAT SUCH PROVISION AUTHORIZES A MODIFICATION OF THE BID OF THE SUCCESSFUL BIDDER ONLY AND DOES NOT PERMIT MODIFICATION OF A BID IN ORDER TO QUALIFY AS A SUCCESSFUL BIDDER. * * *"

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