B-150798, MARCH 14, 1963, 42 COMP. GEN. 490

B-150798, MARCH 14, 1963, 42 COMP. GEN. 490

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA ACKNOWLEDGMENT TO PERMIT CONSIDERATION OF A LOW BID BY A BIDDER WHO AT BID OPENING TIME HAD NOT ACKNOWLEDGED AN AMENDMENT TO THE SPECIFICATIONS WHICH AFFECTED THE PRICE, QUANTITY OR QUALITY OF THE BID WOULD BE PERMITTING THE BIDDER TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS, NOT INCLUDING THE AMENDMENTS, OR TO PERMIT CONSIDERATION OF THE LOW BID ON THE BASIS OF THE BIDDER'S TELEPHONE ACKNOWLEDGMENT TO THE CONTRACTING OFFICER AFTER SOME BIDS HAD BEEN OPENED WOULD BE PERMITTING THE BIDDER TO AMEND HIS BID AFTER OPENING TO CONFORM TO THE SPECIFICATIONS AS MODIFIED BY THE AMENDMENT, EITHER ALTERNATIVE BEING IN CONTRAVENTION OF THE COMPETITIVE BIDDING STATUTES; THEREFORE, THE FAILURE TO TIMELY ACKNOWLEDGE THE AMENDMENTS MAKES THE BID NONRESPONSIVE AND REQUIRES REJECTION.

TO BRADLEY, GEBHARDT, DELANEY AND MILLETTE, MARCH 14, 1963:

BY TELEGRAM OF FEBRUARY 8 AND LETTER OF FEBRUARY 11, 1963, YOU HAVE PROTESTED ON BEHALF OF ARROW, INCORPORATED, AGAINST THE PROPOSED REJECTION OF THAT FIRM'S LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 1- 63-122B1, ISSUED JANUARY 3, 1963, BY THE FEDERAL AVIATION AGENCY FOR THE CONSTRUCTION OF A STANDARD APPROACH LIGHTING SYSTEM AT PRESTON GLENN AIRPORT, LYNCHBURG, VIRGINIA.

BIDS WERE SCHEDULED FOR OPENING AT 2:00 P.M., E.S.T., ON FEBRUARY 5, 1963. ON JANUARY 22, 1963, AN AMENDMENT TO THE INVITATION WAS ISSUED MAKING CERTAIN CHANGES IN THE SPECIFICATIONS WHICH, THE PROCURING AGENCY CONTENDS WITHOUT APPARENT OBJECTION, WOULD MATERIALLY INCREASE THE COST OF PERFORMANCE. THE AMENDMENT PROVIDES AT PAGE 2 AS FOLLOWS:

THIS AMENDMENT IS FURNISHED IN DUPLICATE. BIDDERS ARE REQUESTED TO SIGN ONE COPY IN INK AND RETURN IT TO ROOM 336, FEDERAL BUILDING, NEW YORK INTERNATIONAL AIRPORT, JAMAICA 30, NEW YORK.

NO CHANGE IN THE DATE OF BID OPENING, THE DATE OF NOTICE TO PROCEED, NOR TIME OF CONTRACT COMPLETION SHALL BE MADE BECAUSE OF THE ABOVE CHANGES. FAILURE TO ACKNOWLEDGE THIS AMENDMENT WILL CAUSE THE BID TO BE CONSIDERED NOT RESPONSIVE TO THE INVITATION WHICH WOULD REQUIRE REJECTION OF THE BID.

WHEN BIDS WERE OPENED AT THE TIME AND PLACE SET BY THE TERMS OF THE INVITATION IT WAS FOUND THAT THE LOW BID HAD BEEN SUBMITTED BY ARROW AT $60,000, WHILE THE NEXT LOW BID WAS $64,464. DOUBT AS TO THE ACCEPTABILITY OF THE ARROW BID ARISES BECAUSE OF TIME AND MANNER OF ACKNOWLEDGMENT OF RECEIPT OF THE AMENDMENT.

IN YOUR LETTER YOU STATE THAT ARROW ACKNOWLEDGED RECEIPT OF THE AMENDMENT AND REAFFIRMED ITS BID BY TELEPHONE PRIOR TO THE TIME BIDS WERE OPENED. ON THE OTHER HAND, THE EVENTS ARE DESCRIBED IN THE CONTRACTING OFFICER'S REPORT AS FOLLOWS:

AT APPROXIMATELY 2:02 P.M., WHILE THE BIDS WERE IN THE PROCESS OF BEING OPENED BY THE BID OPENING OFFICER, MR. WAKSMAN, IN THE BID OPENING ROOM, MR. JAMISON, A CONTRACT SPECIALIST, IN ANOTHER ROOM RECEIVED A TELEPHONE CALL FROM MRS. BETTY SANDERS OF ARROW, INC. MRS. SANDERS REQUESTED INFORMATION AS TO WHETHER IT WAS POSSIBLE TO MODIFY THE BID OF ARROW, INC. MR. JAMISON, ADVISED HER THAT HE WOULD INQUIRE. HE THEN CALLED THE CONTRACTING OFFICER OUT OF THE BID OPENING ROOM AND RELATED THE QUESTION TO HIM. THE CONTRACTING OFFICER ADVISED MR. JAMISON THAT WE CANNOT ACCEPT A TELEPHONIC MODIFICATION OF A BID, AND MR. JAMISON SO ADVISED MRS. SANDERS. IT SHOULD BE NOTED, THAT MRS. SANDERS IS KNOWN TO BOTH MR. JAMISON AND THE CONTRACTING OFFICER, AS A CLERICAL EMPLOYEE OF ARROW, INC.

IN RESPONSE TO A FURTHER CHECK ON THE SIGNIFICANT EVENTS WE HAVE BEEN INFORMALLY ADVISED THAT SEVERAL BIDS HAD ALREADY BEEN OPENED BY THE TIME THE CONTRACTING OFFICER HAD BEEN CALLED OUT OF THE BID OPENING ROOM TO RESPOND TO THE TELEPHONE CALL DESCRIBED ABOVE.

IT IS WELL ESTABLISHED THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE WHERE SUCH AMENDMENT COULD, AS HERE, AFFECT PRICE, QUANTITY OR QUALITY. 37 COMP. GEN. 785. THE TERM "PRIOR TO BID OPENING" MUST REFER TO THE SCHEDULED TIME OF OPENING. THIS IS MADE CLEAR IN OUR DECISIONS HOLDING THAT BIDS SUBMITTED EVEN A SHORT TIME AFTER THE DEADLINE STATED IN THE INVITATION FOR BIDS, REGARDLESS OF WHETHER OTHER BIDS HAVE BEEN OPENED, MAY NOT BE CONSIDERED FOR AWARD. SEE B-145690, JUNE 20, 1961; B-137550, DECEMBER 18, 1958; B-135237, FEBRUARY 25, 1958; B-130889, MARCH 26, 1957. IN THE LAST-CITED DECISION THE CASE INVOLVED A BID SUBMITTED TWO MINUTES AFTER THE DEADLINE STATED IN THE INVITATION AND PRIOR TO THE TIME ANY BID HAD ACTUALLY BEEN OPENED. IN UPHOLDING THE CONTRACTING AGENCY'S REFUSAL TO CONSIDER THE BID FOR AWARD, WE STATED:

UNDER THE EXPRESS TERMS OF THE INVITATION, HAND CARRIED BIDS WERE REQUIRED TO BE SUBMITTED PRIOR TO 10:00 A.M. YOUR BID WAS NOT SUBMITTED PRIOR TO THE TIME SPECIFIED. YOUR LACK OF KNOWLEDGE OF THE OTHER BIDS AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT FOR CONSIDERATION. THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT SUCH CONSIDERATIONS TO AFFECT OR ALTER THE FIXED AND EXACT TIME CLEARLY STATED IN AN INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE SYSTEM. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETRATION OF FRAUDS.

WHILE THE PRESENT CASE DOES NOT, IN THE STRICT SENSE, CONCERN THE TARDY SUBMISSION OF A BID, THE PRINCIPLE IS THE SAME SINCE THE ACKNOWLEDGMENT OF THE RECEIPT AND CONSIDERATION OF THE AMENDMENT IS A PREREQUISITE TO ELIGIBILITY FOR AWARD.

STRICT ADHERENCE TO THE DEADLINE IS EVEN MORE IMPORTANT WHERE ONE OR MORE BIDS HAVE BEEN OPENED. ANY OTHER CONCLUSION COULD WELL LEAD TO THE POSSIBILITY THAT AN INDIVIDUAL COULD OBTAIN AN OPTION TO MAKE HIMSELF ELIGIBLE FOR AWARD AFTER GETTING SOME INFORMATION AS TO THE BIDS OF HIS COMPETITORS.

IN THIS CASE THE QUOTED LANGUAGE OF THE AMENDMENT WITH RESPECT TO ACKNOWLEDGMENT IS SUFFICIENTLY INDEFINITE TO PERMIT AN INTERPRETATION WHICH WOULD NOT NECESSARILY REQUIRE ACKNOWLEDGMENT IN WRITING. HOWEVER, THE FACT THAT THE AMENDMENT WAS FURNISHED IN DUPLICATE AND THAT PROVISION WAS MADE FOR WRITTEN ACKNOWLEDGMENT ON THE FACE THEREOF -- AS WELL AS ON THE BID FORM--- SUPPORTS THE POSITION TAKEN IN THE ADMINISTRATIVE REPORT THAT IT WAS THE CONTRACTING OFFICER'S INTENTION TO REQUIRE ACKNOWLEDGMENT IN WRITING AS IN THE CASE OF THE VAST MAJORITY OF COMPETITIVE PROCUREMENTS. UNLESS A WRITTEN ACKNOWLEDGMENT OF THE AMENDMENT IS REQUIRED, THE PURPOSE ACCOMPLISHED BY THE PUBLIC OPENING OF SEALED BIDS AT A GIVEN TIME IS LARGELY VITIATED, SINCE THE CONTRACTING OFFICER WOULD THEN BE IN A POSITION OF DECIDING ON THE BASIS OF A PRIVATE CONVERSATION BETWEEN HIM AND THE BIDDER THAT THE BID WAS OR WAS NOT RESPONSIVE. THINK YOU WILL AGREE THAT SUCH A SITUATION WOULD BE INTOLERABLE.

A BID SUBMITTED IN RESPONSE TO AN INVITATION IS AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. IF AN AMENDMENT WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS NOT ACKNOWLEDGED BY THE BIDDER PRIOR TO BID OPENING, HIS OFFER IS FOR SOMETHING OTHER THAN THE PERFORMANCE SOLICITED BY THE TERMS OF THE INVITATION, INCLUDING ANY AMENDMENTS. TO PERMIT HIM TO PERFORM IN ACCORDANCE WITH THE INVITATION WITHOUT THE UNACKNOWLEDGED AMENDMENT WOULD BE CONTRARY TO THE STATUTES GOVERNING ADVERTISED PROCUREMENTS. UNITED STATES V. ELLICOTT, 223 U.S. 525 (1911). ON THE OTHER HAND, TO PERMIT THE BIDDER TO AMEND HIS BID AFTER OPENING TO CONFORM TO THE SPECIFICATION AS MODIFIED BY ALL THE AMENDMENTS WOULD ALSO CONTRAVENE THE COMPETITIVE BIDDING STATUTES. 63 C.J.S. MUNICIPAL CORPORATIONS, SEC. 1003; 40 COMP. GEN. 447, 448.

ON THE BASIS OF THE FACTS REPORTED BY THE FEDERAL AVIATION AGENCY, ON WHICH WE ARE REQUIRED TO RELY IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY, THE AMENDMENT HAD NOT BEEN ACKNOWLEDGED EVEN ORALLY BY THE DEADLINE FOR THE SUBMISSION OF BIDS CLEARLY ESTABLISHED BY THE TERMS OF THE INVITATION. AT THE DEADLINE, ARROW HAD OFFERED TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS, NOT INCLUDING THE AMENDMENT. THEREFORE, ITS BID COULD NOT BE CONSIDERED RESPONSIVE TO THE TERMS OF THE INVITATION AND WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT THE LOW BID MUST BE REJECTED.