B-153271, JAN. 21, 1964

B-153271: Jan 21, 1964

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TO THE SECRETARY OF THE INTERIOR: WE ARE IN RECEIPT OF A LETTER DATED JANUARY 13. WHEN BIDS ON THIS PROJECT WERE OPENED ON JANUARY 7. IT WAS DISCOVERED THAT MURDOCK FAILED TO INCLUDE WITH HIS BID PAGES 1 AND 2 OF THE BID FORM WHICH INCLUDED THE SIGNATURE PAGE OF THE BID AND THE SPACE PROVIDED FOR BIDDERS TO ACKNOWLEDGE RECEIPT OF ANY ADDENDUM ISSUED IN CONNECTION WITH THE PROJECT. IT IS ESTABLISHED THAT AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED. IT IS EVIDENT THAT ADDENDUM NO. 1 INCREASED THE MINIMUM WAGES THERETOFORE SET OUT IN THE SECRETARY OF LABOR'S DECISION AC-9. OR "/2)THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT ON PRICE. IT IS WELL ESTABLISHED THAT A FAILURE OF A BIDDER TO ACKNOWLEDGE AN AMENDMENT AFFECTING THE PRICE OF A PROCUREMENT.

B-153271, JAN. 21, 1964

TO THE SECRETARY OF THE INTERIOR:

WE ARE IN RECEIPT OF A LETTER DATED JANUARY 13, 1964, FROM THE ASSISTANT REGIONAL DIRECTOR, ADMINISTRATION, SOUTHWEST REGION, NATIONAL PARK SERVICE, REQUESTING OUR DECISION WITH RESPECT TO THE LOW BID SUBMITTED BY THE MURDOCK PLUMBING AND HEATING CO. UNDER AN INVITATION FOR BIDS COVERING PROJECT NO. SWR33-31,"CONSTRUCTION OF LIQUID PETROLEUM GAS, WATER AND SEWER SYSTEMS AT LOE'S FERRY AREA, GLEN CANYON NATIONAL RECREATION AREA, ARIZONA.'

WHEN BIDS ON THIS PROJECT WERE OPENED ON JANUARY 7, 1964, IT WAS DISCOVERED THAT MURDOCK FAILED TO INCLUDE WITH HIS BID PAGES 1 AND 2 OF THE BID FORM WHICH INCLUDED THE SIGNATURE PAGE OF THE BID AND THE SPACE PROVIDED FOR BIDDERS TO ACKNOWLEDGE RECEIPT OF ANY ADDENDUM ISSUED IN CONNECTION WITH THE PROJECT.

WE AGREE THAT THE FAILURE OF THE BIDDER TO SIGN HIS BID MAY BE WAIVED IN THIS INSTANCE UNDER SECTION 1-2.405/C) OF THE FEDERAL PROCUREMENT REGULATIONS. IT IS ESTABLISHED THAT AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED, AS HERE, BY A BID BOND CLEARLY EVIDENCING AN INTENT TO SUBMIT THE BID. 17 COMP. GEN. 497; 36 ID. 523.

MURDOCK FAILED TO ACKNOWLEDGE ADDENDUM NO. 1, DATED DECEMBER 30, 1963, TO THE INVITATION. THIS ADDENDUM MODIFIED CERTAIN CLASSIFICATIONS OF LABOR FURNISHED BY THE SECRETARY OF LABOR UNDER DECISION NO. AC-9,696, DATED OCTOBER 23, 1963, WHICH HAD BEEN INCORPORATED INTO THE ADVERTISED SPECIFICATIONS FURNISHED TO EACH BIDDER. THIS ADDENDUM INCREASED SOME OF THE WAGE RATES WHICH THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO PAY LABORERS AND MECHANICS PERFORMING CERTAIN CATEGORIES OF WORK UNDER THE RESULTING CONTRACT. SUBSEQUENT TO BID OPENING, MURDOCK ADVISED THAT HE HAD RECEIVED THE ADDENDUM AND HAD ACKNOWLEDGED IT ON THE BID FORM.

IT IS EVIDENT THAT ADDENDUM NO. 1 INCREASED THE MINIMUM WAGES THERETOFORE SET OUT IN THE SECRETARY OF LABOR'S DECISION AC-9,696 WHICH HAD BEEN MADE A PART OF THE SPECIFICATIONS FURNISHED TO MURDOCK.

SECTION 1-2.405/D), FEDERAL PROCUREMENT REGULATIONS, AUTHORIZES THE WAIVER OF A BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION ONLY IF:

"/1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID HEREON; OR

"/2)THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT ON PRICE, QUALITY,QUANTITY, OR DELIVERY OF THE ITEMS BID UPON, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PROCURING ACTIVITY.'

IT IS WELL ESTABLISHED THAT A FAILURE OF A BIDDER TO ACKNOWLEDGE AN AMENDMENT AFFECTING THE PRICE OF A PROCUREMENT, EITHER BECAUSE OF A BIDDER DID NOT RECEIVE IT OR BECAUSE THE BIDDER OVERLOOKED IT, CANNOT BE WAIVED AS AN INFORMAL DEVIATION. B-149315, AUGUST 28, 1962; B 148790; JUNE 28, 1962; B-145874, JUNE 5, 1961, AND B-141188, DECEMBER 14, 1959.

MURDOCK'S BID PROPOSED ONLY TO COMPLY WITH THE PROVISIONS OF THE ORIGINAL INVITATION. HENCE, THE GOVERNMENT MAY NOT, WITHOUT HIS CONSENT, ACCEPT HIS BID AND REQUIRE PERFORMANCE IN ACCORDANCE WITH THE INVITATION AS AMENDED. TO GIVE MURDOCK AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO COMPLY WITH THE PROVISIONS OF THE AMENDMENT, OR TO PRECLUDE AWARD TO HIM BY ALLEGING NON-RECEIPT OF THE ADDENDUM, OR BY REMAINING SILENT, WOULD GIVE MURDOCK AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BID CONFORMED TO THE INVITATION AS AMENDED. SUCH ADVANTAGE IS CONTRARY TO THE PURPOSE OF THE COMPETITIVE BIDDING STATUTE. 33 COMP. GEN. 508; 37 ID. 785.

ACCORDINGLY, THE BID OF MURDOCK SHOULD BE DISREGARDED IN MAKING AN AWARD.