B-152814, JAN. 9, 1964

B-152814, JAN. 9, 1964

TO GUENTHER MANUFACTURING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1963, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR COMPANY'S LOW BID FOR FAILURE TO ACKNOWLEDGE IN IT RECEIPT OF CERTAIN AMENDMENTS TO THE INVITATION FOR BIDS NO. IFB-383-714-63, ISSUED ON MAY 13, 1963, BY THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY.

IT IS REPORTED THAT THE INVITATION SOLICITED BIDS FOR FURNISHING IN SPECIFIED QUANTITIES F.O.B. VARIOUS DESTINATIONS A TOTAL OF 76 UNITS OF AN ADAPTER CONFORMING TO THE REQUIREMENTS OF CERTAIN DRAWINGS AND SPECIFICATIONS LISTED THEREIN. THE REQUIRED ADAPTERS ARE USED TO INSTALL AND REMOVE ENGINES ON A4D-2 AIRCRAFT. AMENDMENT NO. I TO THE INVITATION FOR BIDS, ISSUED ON MAY 29, 1963, EXTENDED THE BID OPENING DATE TO JUNE 28, 1963. AMENDMENT NO. II, ISSUED ON JUNE 18, 1963, EXTENDED THE BID OPENING DATE TO JULY 10, 1963, INCREASED THE ADAPTER QUANTITY FROM 76 TO 115; ADDED THREE NEW DESTINATIONS (ORIGINALLY THERE WERE EIGHT DESTINATIONS); REVISED THE QUANTITIES TO BE DELIVERED TO THE OTHER DESTINATIONS; CHANGED THE MATERIAL REQUIRED FROM A CANVAS IN ACCORDANCE WITH THE REQUIREMENTS OF FEDERAL SPECIFICATION CCC-D-746 TO A CANVAS IN ACCORDANCE WITH THE REQUIREMENTS OF FEDERAL SPECIFICATION CCC-C-428C; INCORPORATED A VALUE ENGINEERING INCENTIVE CLAUSE; AND FORWARDED 17 DRAWINGS DISCLOSING DETAILS OF DRAWINGS INCORPORATED IN THE INVITATION FOR BIDS. AMENDMENT NO. III, ISSUED ON JUNE 18, 1963, INCORPORATED AN AMENDMENT TO THE DEFINITION OF "SMALL BUSINESS CONCERN.' AMENDMENT NO. IV, ISSUED ON JULY 3, 1963, EXTENDED THE BID OPENING DATE TO JULY 17, 1963, AND FORWARDED SEVEN DRAWINGS DISCLOSING DETAILS OF DRAWINGS INCORPORATED IN THE INVITATION FOR BIDS. EACH OF THE AMENDMENTS PROVIDED ON ITS FACE THAT:

"BIDDERS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SET FOR BID OPENING, * * *.

"FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE FIXED FOR OPENING OF BIDS MAY RESULT IN THE REJECTION OF YOUR BID. * * *.'

IT IS FURTHER REPORTED THAT WHEN BIDS WERE OPENED ON JULY 17, 1963, IT WAS DETERMINED THAT ALTHOUGH YOUR BID WAS LOW YOU HAD FAILED TO ACKNOWLEDGE AMENDMENTS NOS. II, III AND IV TO THE INVITATION FOR BIDS; THAT ON AUGUST 12, 1963, IN REPLY TO A TELEPHONE INQUIRY AS TO WHEN YOUR COMPANY COULD EXPECT AN AWARD, YOUR REPRESENTATIVE WAS ADVISED THAT YOUR BID WAS NOT BEING CONSIDERED FOR AWARD BECAUSE OF FAILURE TO HAVE ACKNOWLEDGED AMENDMENTS NOS. II, III AND IV; FOLLOWING A SERIES OF CONFERENCES BETWEEN OFFICERS OF YOUR COMPANY AND OFFICIALS OF THE AVIATION SUPPLY OFFICE AT THIS TIME IT WAS STATED THAT YOUR COMPANY NEVER RECEIVED COPIES OF AMENDMENTS II, III AND IV. AFTER RECEIVING AND EXAMINING COPIES OF AMENDMENTS NOS. II, III AND IV, IT WAS REQUESTED THAT YOUR COMPANY BE PERMITTED TO ACKNOWLEDGE THE AMENDMENTS AND THAT ITS BID, AS MODIFIED BY THE ACKNOWLEDGMENTS, BE CONSIDERED FOR AWARD. YOU WERE INFORMED THAT THE REQUEST SHOULD BE REDUCED TO WRITING AND IT WOULD BE CONSIDERED. IN YOUR LETTER DATED AUGUST 15, 1963, IT WAS STATED THAT THE CHANGE IN SPECIFICATIONS FOR CANVAS BAGS WAS NOMINAL AND, WITH THE OTHER AMENDMENTS, REQUIRED NO CHANGE IN YOUR BID PRICE. BY LETTER DATED OCTOBER 8, 1963, YOU WERE ADVISED THAT YOUR BID WAS DETERMINED NONRESPONSIVE UNDER THE TERMS AND CONDITIONS OF THE INVITATION.

YOUR PRESENT LETTER REFERS BRIEFLY TO THE SERIES OF CONFERENCES WITH AVIATION SUPPLY OFFICE OFFICERS AND CALLS PARTICULAR ATTENTION TO THE FACT THAT YOU DID NOT RECEIVE COPIES OF AMENDMENTS II, III AND IV IN DUE COURSE. YOU ALSO STATE THAT IT IS NOT IN THE BEST INTERESTS OF THE GOVERNMENT TO AWARD CONTRACTS AT HIGHER PRICES THAN CAN BE HAD AT LOWER PRICES BY COMPETENT FABRICATORS.

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. -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. SEE ALSO B-151188, MAY 8, 1963.

WE CANNOT AGREE THAT THE AMENDMENTS DO NOT AFFECT THE PRICE AND QUANTITY OF THE ITEMS SOUGHT BY THE INVITATION. WHILE THE CHEMICAL TREATMENT OF THE CANVAS BAGS (AMENDMENT II) MAY INCREASE THE PRICES ONLY SLIGHTLY, AS ALLEGED, THE QUANTITY DESIRED BY THE INVITATION HAS BEEN MATERIALLY CHANGED, WITH POSSIBLE NECESSARY CHANGES IN PRICE DUE TO COSTS OF TRANSPORTATION TO ADDITIONAL DESTINATIONS.

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.