B-153167, JAN. 20, 1964

B-153167: Jan 20, 1964

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED DECEMBER 27. THE RECORD DISCLOSES THAT THE SUBJECT INVITATION WAS AMENDED BY THE ISSUANCE OF AMENDMENT NO. 1. THE PURPOSE OF WHICH WAS TO ADD TWO MODIFICATIONS TO THE ORIGINAL SPECIFICATIONS. THE RECORD FURTHER SHOWS THAT WHILE THE ABOVE AMENDMENT WAS DATED NOVEMBER 21. IT WAS NOT MAILED UNTIL NOVEMBER 26. WE UNDERSTAND THAT THIS DELAY OCCURRED SINCE GOVERNMENT PERSONNEL WERE GENERALLY EXCUSED BOTH ON FRIDAY. BIDS WERE OPENED ON DECEMBER 2. IT WAS DISCOVERED THAT NEITHER STOWMAN SHIPBUILDING CORPORATION NOR FELLOWS AND STEWART. STOWMAN ADVISED THAT THEY WERE REGISTERING A WRITTEN PROTEST AGAINST THE MAKING OF ANY AWARD UNDER THE INVITATION IN QUESTION SINCE FELLOWS AND STEWART DID NOT RECEIVE A COPY OF THE AMENDMENT UNTIL SOMETIME AFTER THE SCHEDULED BID OPENING.

B-153167, JAN. 20, 1964

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 27, 1963, WITH ENCLOSURES, FROM THE DIRECTOR OF CONTRACTS, BUREAU OF SHIPS, REQUESTING AN ADVANCE DECISION AS TO WHETHER ON AWARD SHOULD BE MADE UNDER INVITATION FOR BIDS NO. 600-47-64'S FOR 65 LCM (6) LANDING CRAFT AND IF SO, TO WHICH BIDDER.

THE RECORD DISCLOSES THAT THE SUBJECT INVITATION WAS AMENDED BY THE ISSUANCE OF AMENDMENT NO. 1, THE PURPOSE OF WHICH WAS TO ADD TWO MODIFICATIONS TO THE ORIGINAL SPECIFICATIONS. MODIFICATION NO. 1 REQUIRED AN IMPROVED FUEL TANK AND AN OVER-RIDE DEVICE ON THE LANDING CRAFT STARTER MOTOR WHICH THE BUREAU ESTIMATES SHOULD INCREASE PRODUCTION COST BY $500 PER CRAFT. MODIFICATION NO. 2 REQUIRED THE ADDITION OF A HEAVY DUTY STARTER MOTOR. THE BUREAU ESTIMATES THAT THIS MODIFICATION SHOULD INCREASE THE PRODUCTION COST BY $70 PER CRAFT. THE RECORD FURTHER SHOWS THAT WHILE THE ABOVE AMENDMENT WAS DATED NOVEMBER 21, 1963, IT WAS NOT MAILED UNTIL NOVEMBER 26, 1963. WE UNDERSTAND THAT THIS DELAY OCCURRED SINCE GOVERNMENT PERSONNEL WERE GENERALLY EXCUSED BOTH ON FRIDAY, NOVEMBER 22 AND MONDAY, NOVEMBER 25, 1963, AS A RESULT OF THE ASSASSINATION OF THE LATE PRESIDENT KENNEDY.

AS SPECIFIED IN THE INVITATION, BIDS WERE OPENED ON DECEMBER 2, 1963. THE ABSTRACT OF BIDS SHOWS THE FOLLOWING BIDS RECEIVED AND THE RESPECTIVE AMOUNTS OF EACH ON A UNIT PRICE BASIS: CHART

BIDDER ITEM 1 2 3

(40 CRAFT) (25 CRAFT) (65 CRAFT)

1. BARBOUR BOAT WORKS,

INC. $34,335.00 $-------- $--------- 2. FELLOWS AND STEWART, INC. ------ --- 68,082.55 --------- 3. GULFPORT SHIPBUILDING CORP. 57,619.00 59,344.00 58,282.00 4. MARINETTE MARINE CORP. 28,850.00 29,470.00 29,000.00 5. SOUTH PORTLAND ENGINEERING CO. 32,472.00 -------- --------- 6. STOWMAN SHIPBUILDING CORP. 26,615.00

36,600.00 30,455.00

DURING THE COURSE OF EXAMINING THE BIDS, HOWEVER, IT WAS DISCOVERED THAT NEITHER STOWMAN SHIPBUILDING CORPORATION NOR FELLOWS AND STEWART, INCORPORATED HAD ACKNOWLEDGED RECEIPT OF THE AMENDMENT AS REQUIRED BY BOTH THE ORIGINAL INVITATION AND THE AMENDMENT. SUBSEQUENTLY, UPON QUESTIONING, A REPRESENTATIVE OF STOWMAN ADVISED THAT THE AMENDMENT HAD BEEN RECEIVED AND THAT THE COMPANY CONSIDERED IT IN COMPUTING THEIR BID.

BY LETTER DATED DECEMBER 10, 1963, STOWMAN ADVISED THAT THEY WERE REGISTERING A WRITTEN PROTEST AGAINST THE MAKING OF ANY AWARD UNDER THE INVITATION IN QUESTION SINCE FELLOWS AND STEWART DID NOT RECEIVE A COPY OF THE AMENDMENT UNTIL SOMETIME AFTER THE SCHEDULED BID OPENING. ON DECEMBER 20, 1963, FELLOWS AND STEWART ALSO ADDRESSED A WRITTEN PROTEST TO THE BUREAU OF SHIPS. IT APPEARS THAT BOTH PROTESTS ARE PREDICATED UPON ARMED SERVICES PROCUREMENT REGULATION 2-207/C) WHICH STATES AS FOLLOWS:

"/C) ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS.'

WHERE AN INVITATION IS SUBSEQUENTLY QUALIFIED BY AN AMENDMENT WHICH AFFECTS EITHER PRICE, QUANTITY OR QUALITY AND SUCH AMENDMENT IS NOT ACKNOWLEDGED BY THE BIDDER PRIOR TO BID OPENING, SUCH BID MUST BE DECLARED NONRESPONSIVE SINCE THIS CONSTITUTES AN OFFER FOR SOMETHING OTHER THAN THAT REQUESTED. TO GIVE A BIDDER AN OPTION TO BECOME ELIGIBLE FOR AN AWARD AFTER BID OPENING BY LATER AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION AS AMENDED, OR TO PRECLUDE AWARD BY ALLEGING THE NONRECEIPT OF AN ADDENDUM, WOULD BE TO GIVE THAT BIDDER AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY. ACCORDINGLY, THIS OFFICE HAS CONSISTENTLY HELD THAT WHERE THERE IS A FAILURE OF A BIDDER TO ACKNOWLEDGE THE RECEIPT OF AN AMENDMENT PRIOR TO BID OPENING, SUCH FAILURE RENDERS THE BID NONRESPONSIVE WHENEVER THE AMENDMENT AFFECTS EITHER PRICE, QUANTITY OR QUALITY. SEE 37 COMP. GEN. 785. THIS SAME RULE APPEARS FOR APPLICATION NOTWITHSTANDING THAT THE AMENDMENT WAS NOT TIMELY RECEIVED. IN A CASE INVOLVING A SOMEWHAT SIMILAR SITUATION REPORTED IN 40 COMP. GEN. 126, WE STATED---

"WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR MODIFICATION THEREOF AFTER THE TIME FIXED FOR OPENING.'

WE BELIEVE THIS TO BE ESPECIALLY TRUE IN THE PRESENT SITUATION SINCE FELLOWS AND STEWART'S BID WAS THE HIGHEST RECEIVED AND THE PRACTICAL EFFECT OF THIS AMENDMENT WOULD ONLY BE TO INCREASE THEIR BID EVEN MORE.