B-151040, OCT. 7, 1963

B-151040: Oct 7, 1963

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TO R S R CONSTRUCTION COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 11. BIDS WERE SOLICITED FOR THE FURNISHING OF ALL LABOR AND MATERIALS REQUIRED FOR CERTAIN REPAIR AND OTHER WORK AT THE BASE HOSPITAL. BID SETS WERE FURNISHED TO 20 FIRMS AND THE INVITATION FOR BIDS WAS MODIFIED BY TWO AMENDMENTS PRIOR TO THE SCHEDULED TIME FOR THE PUBLIC OPENING OF BIDS. IT WAS APPARENT THAT YOU HAD MADE A MISTAKE IN THE PRICE QUOTED FOR ALTERATIONS AS REQUIRED UNDER SUBITEM NO. 2A OF THE INVITATION. 726 AND THIS SAME FIGURE WAS USED AS THE TOTAL AMOUNT OF YOUR BASIC BID COVERING SUBITEMS 1A. AFTER OPENING OF BIDS IT WAS ASCERTAINED THAT THE PROCUREMENT OFFICE HAD NOT MAILED COPIES OF THE TWO AMENDMENTS TO THE INVITATION TO YOUR COMPANY.

B-151040, OCT. 7, 1963

TO R S R CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 11, 1963, PROTESTING THE REJECTION OF YOUR BID AND THE MAKING OF A CONTRACT AWARD TO ANOTHER BIDDER UNDER DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS NO. 12-617-63 -28, ISSUED JANUARY 7, 1963, BY THE BASE PROCUREMENT OFFICE, BUNKER HILL AIR FORCE BASE, PERU, INDIANA.

BIDS WERE SOLICITED FOR THE FURNISHING OF ALL LABOR AND MATERIALS REQUIRED FOR CERTAIN REPAIR AND OTHER WORK AT THE BASE HOSPITAL. BID SETS WERE FURNISHED TO 20 FIRMS AND THE INVITATION FOR BIDS WAS MODIFIED BY TWO AMENDMENTS PRIOR TO THE SCHEDULED TIME FOR THE PUBLIC OPENING OF BIDS. ADDITION TO THE FACT THAT YOUR BID DID NOT CONTAIN AN ACKNOWLEDGEMENT OF THE RECEIPT OF THE TWO AMENDMENTS TO THE INVITATION, IT WAS APPARENT THAT YOU HAD MADE A MISTAKE IN THE PRICE QUOTED FOR ALTERATIONS AS REQUIRED UNDER SUBITEM NO. 2A OF THE INVITATION. FOR THAT SUBITEM YOU QUOTED THE AMOUNT OF $43,726 AND THIS SAME FIGURE WAS USED AS THE TOTAL AMOUNT OF YOUR BASIC BID COVERING SUBITEMS 1A, 1B AND 1C OF THE BID SCHEDULE.

AFTER OPENING OF BIDS IT WAS ASCERTAINED THAT THE PROCUREMENT OFFICE HAD NOT MAILED COPIES OF THE TWO AMENDMENTS TO THE INVITATION TO YOUR COMPANY. COPIES OF THE AMENDMENTS WERE THEREUPON FURNISHED AND YOU PROMPTLY EXECUTED AND RETURNED THEM TO THE PROCUREMENT OFFICE. YOU ALSO ATTEMPTED TO CHANGE YOUR BID PRICE. YOU FIRST PROPOSED TO CHANGE YOUR TOTAL BID TO $46,350, INCLUDING THE ADDITION OF $2,624 TO YOUR BASIC BID OF $43,726 TO COVER THE ALTERATIONS REQUIRED UNDER SUBITEM NO. 2A OF THE BID SCHEDULE, FOR WHICH YOUR ORIGINAL BID STATED A PRICE OF $43,726, THE SAME AS THE TOTAL BASIC BID FOR SUBITEMS 1A, 1B AND 1C. SUBSEQUENTLY, YOU PROPOSED TO CHANGE THE TOTAL AMOUNT OF YOUR BID TO $44,600, AND FINALLY, YOU INDICATED THAT YOUR BASIC PRICE OF $43,726 WAS INTENDED TO INCLUDE ALL SUBITEMS OF ITEM NO. 1 AND SUBITEM 2A OF THE BID SCHEDULE. THE LOWEST OF THE FOUR REMAINING BIDS WAS SUBMITTED BY THE PERU BUILDING SERVICE, PERU, INDIANA, WHICH FIRM QUOTED PRICES TOTALING $44,964 FOR SUBITEMS NOS. 1A, 1B, 1C AND 2A OF THE BID SCHEDULE.

THE BID SCHEDULE HAD BEEN REVISED TO SOME EXTENT BY THE AMENDMENTS TO THE INVITATION BUT YOU CONTENDED THAT SUCH REVISIONS WOULD NOT HAVE CAUSED YOU TO SUBMIT HIGHER PRICES. HOWEVER, AMENDMENT NO. 2 TO THE INVITATION PROVIDED FOR AN INCREASE IN THE RATE OF LIQUIDATED DAMAGES FOR UNEXCUSABLE PERFORMANCE DELAYS FROM $75 TO $200 PER CALENDAR DAY OF DELAY, AND IT APPEARS THAT YOUR ASSENT THERETO WAS NECESSARY TO MAKE YOUR BID RESPONSIVE.

THE CONTEMPLATED ADDITIONAL OBLIGATION ON THE PART OF THE SUCCESSFUL BIDDER NORMALLY WOULD HAVE TENDED TO RESULT IN THE QUOTATION OF HIGHER BID PRICES AND THE GOVERNMENT WOULD HAVE BEEN AFFORDED A GREATER AMOUNT OF PROTECTION AGAINST A DELINQUENCY IN CONTRACT PERFORMANCE. IT THEREFORE APPEARS THAT THE PARTICULAR REQUIREMENT OF AMENDMENT NO. 2 TO THE INVITATION MUST BE CONSIDERED AS A MATERIAL PART OF THE INVITATION. BIDDER'S FAILURE TO ACKNOWLEDGE AND ASSENT TO THE TERMS OF THE AMENDMENT PRIOR TO THE TIME SET FOR PUBLIC OPENING OF BIDS COULD NOT HAVE BEEN WAIVED AS A MERE INFORMALITY OR IRREGULARITY IN BID, SINCE IT IS AN ESTABLISHED RULE IN FORMAL COMPETITIVE PROCUREMENT BY GOVERNMENT AGENCIES THAT A CONTRACT AWARDED TO THE SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS AND THAT A BID MUST BE REJECTED IF IT FAILS TO CONFORM TO THE TERMS OF THE ADVERTISEMENT FOR BIDS IN ALL MATERIAL RESPECTS. ALTHOUGH YOU SUBSEQUENTLY AGREED TO BE BOUND BY THE TERMS OF AMENDMENT NO. 2, YOUR BID WAS NEVERTHELESS REQUIRED TO BE REJECTED UNDER THE RULE THAT A BID MAY NOT BE CHANGED AFTER OPENING IF SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. SEE, GENERALLY, 40 COMP. GEN. 447, 449-450.

IT IS UNFORTUNATE THAT COPIES OF THE AMENDMENTS TO THE INVITATION WERE NOT SENT TO YOUR COMPANY BEFORE THE SCHEDULED TIME FOR PUBLIC OPENING OF BIDS. HOWEVER, SUCH OMISSION APPEARS TO HAVE BEEN UNINTENTIONAL AND IT HAS CONSISTENTLY BEEN OUR POSITION THAT A FAILURE ON THE PART OF THE GOVERNMENT TO SEND A PARTICULAR BIDDER OR FIRM A COPY OF AN INVITATION FOR BIDS OR A COPY OF AN AMENDMENT THERETO DOES NOT ORDINARILY REQUIRE EITHER A READVERTISEMENT FOR BIDS OR THE ACCEPTANCE OF A BID OR MODIFICATION THEREOF SUBMITTED AFTER THE TIME FIXED FOR OPENING OF BIDS. SEE 34 COMP. GEN. 684, AND 40 ID. 126.

IN ANY EVENT, WE BELIEVE THAT YOUR BID WOULD HAVE BEEN OTHERWISE PROPERLY FOR REJECTION BECAUSE OF THE MISTAKE OR MISTAKES MADE THEREIN. PROVIDED IN SUBSECTION 2-406.3, PARAGRAPH (A) (3), OF THE ARMED SERVICES PROCUREMENT REGULATION, A MISTAKE IN BID MAY NOT BE CORRECTED WHEN THE CORRECTION WOULD RESULT IN THE DISPLACEMENT OF ONE OR MORE LOWER BIDS, EXCEPT WHERE THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. FURTHERMORE, WE HAVE HELD THAT A NON RESPONSIVE BID MAY NOT BE MADE RESPONSIVE BY CORRECTION OF AN ERROR ALLEGED AFTER BID OPENING. SEE 38 COMP. GEN. 819. THE CONTRACTING OFFICER IN THIS CASE REALIZED THE PROBABILITY THAT A MISTAKE IN BID WAS MADE. HOWEVER, AN EXAMINATION OF THE BID DOES NOT REFLECT OR IN ANY MANNER READILY MAKE ASCERTAINABLE THE AMOUNT ACTUALLY INTENDED TO BE BID. ON ITS FACE IT QUOTED A TOTAL PRICE OF $87,452, AND THERE WAS NOTHING TO SHOW EITHER THAT $43,726 WAS INTENDED TO INCLUDE ITEM 2A OR WHAT AMOUNT WAS INTENDED TO BE BID FOR THAT ITEM.