B-153262, FEB. 19, 1964

B-153262: Feb 19, 1964

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED JANUARY 28. BIDS WERE REQUESTED ON TWO SCHEDULES OF ESTIMATED QUANTITIES OF EQUIPMENT. IT WAS CONTEMPLATED THAT THE AWARD OF BOTH SCHEDULES. WHICH WAS ADDED TO SCHEDULE II BY ADDENDUM NO. 1. EIGHT BIDS WERE RECEIVED AND THEY WERE PUBLICLY OPENED ON DECEMBER 5. THE INVITATION WAS MODIFIED BY FIVE ADDENDA PRIOR TO THE PUBLIC OPENING OF BIDS AND. IT WAS EXPLAINED IN THE ADDENDUM THAT CERTAIN GOVERNMENT FURNISHED MATERIALS AND TOOLING WOULD BE AVAILABLE FOR THIS ADDITIONAL WORK AND THAT THE CONTRACTOR WOULD BE PAID A LUMP-SUM PRICE AS FULL COMPENSATION FOR HAULING ALL GOVERNMENT-FURNISHED MATERIALS AND TOOLS TO THE JOB SITE.

B-153262, FEB. 19, 1964

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JANUARY 28, 1964, FROM THE DEPUTY ADMINISTRATIVE ASSISTANT SECRETARY, FURNISHING THE REPORT REQUESTED IN OUR LETTER TO YOU OF JANUARY 21, 1964, ON THE PROTEST OF BAY CONSTRUCTION COMPANY, INC., SEATTLE, WASHINGTON, AGAINST A POSSIBLE AWARD OF A CONTRACT TO RASMUSSEN-B-E-C-K, INC., SUNNYSIDE, WASHINGTON, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER UNDER INVITATION NO. 9739, ISSUED ON OCTOBER 11, 1963, BY THE BONNEVILLE POWER ADMINISTRATION OFFICE IN PORTLAND, OREGON.

BIDS WERE REQUESTED ON TWO SCHEDULES OF ESTIMATED QUANTITIES OF EQUIPMENT, MATERIALS AND LABOR REQUIRED FOR THE CONSTRUCTION OF THE BIG EDDY-PARKDALE SECTION OF THE JOHN DAY-KEELER 500 KV LINE NO. 1; AND FOR CONSTRUCTION OF THE PARKDALE-SANDY SECTION OF THE BIG EDDY-SANDY 345 KV LINE NO. 1, IN WASCO, HOOD RIVER AND CLACKAMAS COUNTIES, OREGON. IT WAS CONTEMPLATED THAT THE AWARD OF BOTH SCHEDULES, COMPRISING A TOTAL OF 106 ITEMS, INCLUDING ITEM NO. 100A, WHICH WAS ADDED TO SCHEDULE II BY ADDENDUM NO. 1, DATED NOVEMBER 7, 1963, WOULD BE MADE AS A WHOLE TO ONE BIDDER.

EIGHT BIDS WERE RECEIVED AND THEY WERE PUBLICLY OPENED ON DECEMBER 5, 1963. THE ABOVE-NAMED COMPANIES SUBMITTED THE LOWEST BIDS IN THE RESPECTIVE TOTAL AMOUNTS OF $859,533.20 AND $808,594. THE RASMUSSEN COMPANY FAILED, HOWEVER, TO QUOTE A PRICE FOR ITEM JO. NO. 100A, AND THE BAY CONSTRUCTION COMPANY HAS TAKEN THE POSITION THAT THE RASMUSSEN COMPANY'S BID SHOULD BE REJECTED AS NONRESPONSIVE TO THE GOVERNMENT'S INVITATION FOR BIDS.

THE INVITATION WAS MODIFIED BY FIVE ADDENDA PRIOR TO THE PUBLIC OPENING OF BIDS AND, AS IN THE CASE OF ADDENDUM NO. 1, DATED NOVEMBER 7, 1963, IT APPEARS THAT EACH ADDENDUM CONTAINED A REQUEST THAT ITS RECEIPT BE ACKNOWLEDGED ON THE BID FORM OR SIGNED FOR IDENTIFICATION PURPOSES AND RETURNED; ALSO, A STATEMENT THAT FAILURE OF A BIDDER TO RETURN AS PART OF THE BID, OR OTHERWISE TO ACKNOWLEDGE RECEIPT PRIOR TO THE TIME SPECIFIED FOR OPENING OF AN ADDENDUM AFFECTING QUANTITY, QUALITY OR PRICE, WOULD REQUIRE REJECTION OF THE BID.

ADDENDUM NO. 1 ADDED TO THE BID SPECIFICATIONS A REQUIREMENT FOR STRINGING AND REMOVAL OF ONE TEST LENGTH OF APPROXIMATELY 2,900 FEET OF 2.5-INCH CONDUCTOR FROM TOWER 61/3 (AA 271) BACK THROUGH TOWERS 61/2 (AA 270) AND 61/1 (AA 269), AND ANCHORING BEHIND TOWER 61/1 (AA 269). IT WAS EXPLAINED IN THE ADDENDUM THAT CERTAIN GOVERNMENT FURNISHED MATERIALS AND TOOLING WOULD BE AVAILABLE FOR THIS ADDITIONAL WORK AND THAT THE CONTRACTOR WOULD BE PAID A LUMP-SUM PRICE AS FULL COMPENSATION FOR HAULING ALL GOVERNMENT-FURNISHED MATERIALS AND TOOLS TO THE JOB SITE, FURNISHING ALL MATERIALS AND TOOLS NOT FURNISHED BY THE GOVERNMENT, INSTALLING CROSSARMS, INSULATORS, STRINGING SHEAVES, ONE DEAD-END ASSEMBLY; INSTALLING THE CONDUCTOR AND HOLDING IT AT THE REQUIRED TENSION; RE- REELING THE CONDUCTOR; REMOVING CROSSARM TIES, INSULATORS AND STRING SHEAVES; CUTTING OFF THE DEAD-END ASSEMBLY; AND RETURNING ALL GOVERNMENT- FURNISHED MATERIALS AND TOOLS TO THE STORAGE POINT. THE ADDENDUM THEN SET FORTH THAT:

"THE FOLLOWING IS ADDED TO SCHEDULE II OF THE SCHEDULE OF DESIGNATIONS AND BID PRICES:

CHART

ITEM DESIGNATION BID UNIT AMOUNT

NO. 100A INSTALL AND REMOVE 2.5-INCH LUMP-SUM

CONDUCTOR

THE RASMUSSEN COMPANY ACKNOWLEDGED HAVING RECEIVED THE FIVE ADDENDA TO THE INVITATION IN THE SPACE PROVIDED FOR SUCH ACKNOWLEDGEMENTS ON THE BID FORM. WHEN THE COMPANY'S ATTENTION WAS INVITED TO THE FACT THAT IT DID NOT QUOTE A PRICE FOR ITEM NO. 100A, THE COMPANY ADVISED THE PROCUREMENT OFFICE THAT THE COST OF THAT ITEM WAS INCLUDED IN THE UNIT PRICE BID FOR ITEM NO. 100. FOR BREAKDOWN PURPOSES, THE COMPANY SUGGESTED THAT THE UNIT PRICE FOR ITEM NO. 100 BE REDUCED BY $80 TO $3,650 PER CIRCUIT-MILE AND THAT THE BID FOR ITEM NO. 100A SHOW A LUMP SUM AMOUNT OF $3,056 ($80 X 38.2, WHICH IS THE ESTIMATED CIRCUIT-MILE QUANTITY FOR ITEM NO. 100, DESCRIBED AS ,STRING AND SAG THREE CONDUCTORS, ACSR "CHUKAR).'"

IT HAS BEEN SUGGESTED ADMINISTRATIVELY THAT THE PROVISIONS OF ADDENDUM NO. 1 AND THE RASMUSSEN COMPANY'S ACKNOWLEDGEMENT OF ITS RECEIPT OF THE ADDENDUM CREATED AN OBLIGATION ON THE PART OF THAT COMPANY TO PERFORM THE STRINGING CALLED FOR IN THE ADDENDUM EVEN THOUGH IT DID NOT INCLUDE IN SCHEDULE II A SPECIFIC AND SEPARATE PRICE FOR SUCH WORK. IT IS STATED IN THAT CONNECTION THAT THE ADDENDUM DID NOT REQUIRE EITHER A SPECIAL ENTRY FOR ITEM NO. 100A IN SCHEDULE II OR A RETURN OF THE ADDENDUM WITH A PRICE STATED FOR THE ITEM.

IF ADDENDUM NO. 1 HAD CHANGED THE WORK REQUIREMENTS UNDER ONE OR MORE OF THE ITEMS OF THE ORIGINAL SCHEDULE II, WE WOULD AGREE THAT ACKNOWLEDGEMENT OF RECEIPT OF THE ADDENDUM WITHOUT EXCEPTION THERETO WOULD HAVE CONSTITUTED A SUFFICIENT BASIS FOR CONSIDERING THAT THE RASMUSSEN COMPANY HAD SUBMITTED A COMPLETE BID. THE REQUIREMENT THAT RECEIPT OF AN ADDENDUM BE ACKNOWLEDGED IN A SITUATION OF THAT NATURE WOULD INSURE THAT ALL BIDDERS WOULD BE COMPETING ON A COMMON BASIS, AND THE ACKNOWLEDGEMENT OF RECEIPT OF THE ADDENDUM CLEARLY WOULD CREATE AN OBLIGATION ON THE PART OF THE BIDDER TO PERFORM STRICTLY IN ACCORDANCE WITH THE REVISED SPECIFICATIONS AT ITS STATED BID PRICES. HOWEVER, WE DO NOT AGREE THAT AN ADDENDUM WHICH ADDS AN ITEM TO AN INVITATION FOR BIDS MAY BE CONSIDERED AS REQUIRING ONLY THAT THE BIDDER ACKNOWLEDGE ITS RECEIPT IN ORDER TO MAKE HIS BID FULLY RESPONSIVE TO THE AMENDED INVITATION, ASSUMING THAT THE BIDDER HAS QUOTED PRICES FOR AND TAKEN NO EXCEPTION TO THE REQUIREMENTS OF THE ORIGINAL ITEMS OF THE INVITATION.

WE NOTE THAT THE SEVEN OTHER BIDDERS QUOTED PRICES FOR ITEM NO. 100A AND WE BELIEVE THAT IT WAS INCUMBENT UPON THE RASMUSSEN COMPANY TO QUOTE A LUMP-SUM PRICE OR TO SPECIFY THAT NO CHARGE WOULD BE MADE FOR ITEM NO. 100A IF, IN FACT, THE BIDDER HAD INCLUDED THE COST OF THE PARTICULAR WORK IN THE COMPUTATION OF ITS TOTAL PRICE FOR ITEM NO. 100. IN OUR OPINION, IT IS IMMATERIAL WHETHER OR NOT THE ADDENDUM IN THIS CASE FAILED TO SPECIFY THAT EITHER A SEPARATE ENTRY MUST BE MADE FOR ITEM NO. 100A IN SCHEDULE NO. II,OR THAT BIDDERS MUST RETURN THE ADDENDUM WITH A PRICE STATED FOR THAT ITEM. THE FACT REMAINS THAT THE ADDENDUM CLEARLY INDICATED THAT THE GOVERNMENT EXPECTED TO RECEIVE LUMP-SUM QUOTATIONS FOR THE ADDED ITEM OF THE INVITATION, AND WE SEE NO BASIS WHATEVER FOR ANY SUPPOSITION BY BIDDERS THAT THE QUOTATION OF A PRICE FOR ITEM NO. 100A WAS NOT REQUIRED TO MAKE A BID COMPLETELY RESPONSIVE TO THE INVITATION, AS AMENDED. IF A BIDDER DID NOT EMPLOY THE MOST CONVENIENT METHOD OF INDICATING ITS INTENTION WITH RESPECT TO THE PRICING OF THE ITEM, BY EXECUTING AND RETURNING THE ADDENDUM WITH THE BID, SUCH INTENTION SHOULD OTHERWISE HAVE BEEN EVIDENCED BY LETTER ACCOMPANYING THE BID OR BY APPROPRIATE NOTATIONS ON THE BIDDING SCHEDULE MADE A PART OF THE BID.

THE ADDED ITEM NO. 100A CALLED FOR THE INSTALLATION AND REMOVAL OF A TEST LINE OF THE APPROXIMATE LENGTH OF 2,900 FEET, WHEREAS ITEM NO. 100 CALLED FOR THE QUOTATION OF A UNIT PRICE FOR APPROXIMATELY 38.2 CIRCUIT MILES OF STRINGING CONDUCTOR WORK. THE RASMUSSEN COMPANY QUOTED A UNIT PRICE OF $3,730 AND A TOTAL PRICE OF $142,486 FOR ITEM NO. 100, AND IT DOES NOT APPEAR THAT ITEM NO. 100A WAS SO CLOSELY RELATED THERETO AS TO WARRANT THE ACCEPTANCE OF THE BIDDER'S EXPLANATION THAT THE LUMP-SUM ITEM (NO. 100A) WAS INCLUDED IN THE COST OF THE UNIT PRICE ITEM (NO. 100).

IN THE PARTICULAR CIRCUMSTANCES, IT IS OUR OPINION THAT THE MAKING OF A CONTRACT AWARD TO THE RASMUSSEN COMPANY WITH THE UNDERSTANDING THAT NO CHARGE WOULD BE MADE FOR ITEM NO. 100A WOULD BE TANTAMOUNT TO PERMITTING A CHANGE IN BID AFTER OPENING, CONTRARY TO ONE OF THE BASIC PRINCIPLES OF FORMAL COMPETITIVE PROCUREMENT BY AGENCIES OF THE GOVERNMENT; AND THAT THE RASMUSSEN BID MUST BE REJECTED FOR FAILURE TO QUOTE A PRICE ON ITEM NO. 100A OR TO SPECIFY THAT NO CHARGE WOULD BE MADE FOR THE WORK CONTEMPLATED FOR PERFORMANCE UNDER THAT ITEM.