B-155647, JAN. 18, 1965

B-155647: Jan 18, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 20 AND 23. WHICH WAS NOT REQUIRED BY THE ORIGINAL SPECIFICATIONS. BIDS WERE OPENED. THE DUPLICATE BIDS WERE PUT IN AN ENVELOPE AND LEFT ON A TABLE IN THE BID ROOM UNTIL OCTOBER 6. WHERE THEY WERE AVAILABLE FOR REVIEW BY THE PUBLIC. WHICH WAS THE LOWEST BID ON LOT VII. HAD SPECIAL NOTICE NO. 1 ATTACHED AT THE TIME THEY WERE RECORDED. STATING THAT YOUR DUPLICATE BID DID NOT HAVE A COPY OF THE AMENDMENT ATTACHED WHEN HE EXAMINED IT IMMEDIATELY AFTER OPENING AND INQUIRING WHETHER AN AMENDMENT WAS ATTACHED TO THE ORIGINAL. MISS GUY'S ANSWER WAS IN THE NEGATIVE. A LETTER TO THE SAME EFFECT WAS RECEIVED FROM MR. WHEN YOUR DUPLICATE BID WAS REMOVED FROM THE BID ROOM ON OCTOBER 6 IT WAS FOUND TO HAVE THE AMENDMENT IN QUESTION ATTACHED TO IT BY MEANS OF A STAPLE.

B-155647, JAN. 18, 1965

TO B AND W UPHOLSTERING, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 20 AND 23, 1964, PROTESTING AGAINST REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. FPNFH-V-65389.

THE INVITATION, ISSUED AUGUST 31, 1964, BY THE GENERAL SERVICES ADMINISTRATION, CALLED FOR SEALED BIDS IN DUPLICATE ON FURNISHING NINE LOTS OF FURNITURE, AS SPECIFIED THEREIN. SPECIAL NOTICE NO. 1, ISSUED SEPTEMBER 8, 1964, MADE SEVERAL MATERIAL CHANGES IN THE INVITATION, INCLUDING INCREASE IN THE BREAKING STRENGTH OF FLAT NYLON COVERING FROM SEVENTY POUNDS TO ONE HUNDRED POUNDS AND ESTABLISHMENT OF A WEIGHT PER LINEAR YARD FOR MEDIUM TEXTURE FABRICS, WHICH WAS NOT REQUIRED BY THE ORIGINAL SPECIFICATIONS. THE AMENDMENT ALSO WARNED BIDDERS THAT FAILURE TO ACKNOWLEDGE RECEIPT OF SAID AMENDMENT AND RETURN SIGNED COPIES, IN DUPLICATE, WITH THE BID WOULD RESULT IN THE BID BEING DECLARED NONRESPONSIVE AND REJECTED.

BIDS WERE OPENED, AS SCHEDULED, ON SEPTEMBER 30, 1964, BY PROCUREMENT AGENT, ANNE V. GUY, AND THE DUPLICATE BIDS WERE PUT IN AN ENVELOPE AND LEFT ON A TABLE IN THE BID ROOM UNTIL OCTOBER 6, 1964, WHERE THEY WERE AVAILABLE FOR REVIEW BY THE PUBLIC. IMMEDIATELY AFTER COMPLETING THE OPENING, MISS GUY TOOK THE ORIGINAL BIDS TO THE CLERICAL SECTION OF THE PROCURING ACTIVITY FOR RECORDING. THE ABSTRACT OF BIDS SHOWS THAT NEITHER YOUR BID, WHICH WAS THE LOWEST BID ON LOT VII, NOR ONE OTHER BID, HAD SPECIAL NOTICE NO. 1 ATTACHED AT THE TIME THEY WERE RECORDED. BETWEEN 2:00 NOON AND 1:00 P.M. ON THE BID OPENING DAY, MISS GUY REPORTS HAVING RECEIVED A TELEPHONE CALL FROM PHILLIP A. WARNER, JR., REPRESENTING THE SECOND LOWEST BIDDER ON LOT VII, DALLAS, INCORPORATED, STATING THAT YOUR DUPLICATE BID DID NOT HAVE A COPY OF THE AMENDMENT ATTACHED WHEN HE EXAMINED IT IMMEDIATELY AFTER OPENING AND INQUIRING WHETHER AN AMENDMENT WAS ATTACHED TO THE ORIGINAL. MISS GUY'S ANSWER WAS IN THE NEGATIVE. OCTOBER 2, 1964, A LETTER TO THE SAME EFFECT WAS RECEIVED FROM MR. WARNER. WHEN YOUR DUPLICATE BID WAS REMOVED FROM THE BID ROOM ON OCTOBER 6 IT WAS FOUND TO HAVE THE AMENDMENT IN QUESTION ATTACHED TO IT BY MEANS OF A STAPLE. IN VIEW OF THE CIRCUMSTANCES RELATED ABOVE, THE DIRECTOR OF THE COMPLIANCE DIVISION WAS REQUESTED TO MAKE AN INVESTIGATION OF THE APPARENT IRREGULARITY. AS A RESULT OF SUCH INVESTIGATION, THE ADMINISTRATIVE AGENCY HAD CONCLUDED THAT NEITHER THE ORIGINAL NOR DUPLICATE BIDS SUBMITTED BY YOUR COMPANY INCLUDED SPECIAL NOTICE NO. 1 AND, THEREFORE, YOUR BID IS NONRESPONSIVE AND AWARD OF A CONTRACT TO FURNISH LOT VII UNDER THIS INVITATION SHOULD BE MADE TO DALLAS, INCORPORATED.

IN BOTH THE LETTERS OF PROTEST FROM YOUR AGENT, D. E. FRYE, AND IN A SWORN STATEMENT OBTAINED FROM HIM BY THE COMPLIANCE DIVISION, IT IS STATED THAT HE SECURED TWO COPIES OF THE AMENDMENT FROM THE PROCURING ACTIVITY ON SEPTEMBER 29, 1964, AND RETURNED TO HIS OFFICE AND COMPILED THEM; THAT HE THEN FOLDED THEM SEPARATELY AND PLACED THEM IN AN ENVELOPE WITH THE ORIGINAL AND DUPLICATE BIDS WITHOUT ATTACHING THEM IN ANY WAY; THAT ON THE SAME DAY HE DELIVERED THE SEALED ENVELOPE TO AN UNKNOWN PERSON IN THE BID ROOM; AND THAT HE DID NOT THEREAFTER HANDLE THE ENVELOPE, BIDS OR AMENDMENTS UNTIL HIS STATEMENT WAS TAKEN ON OCTOBER 22, 1964.

IN ITS INVESTIGATION, THE COMPLIANCE DIVISION ALSO OBTAINED SWORN STATEMENTS FROM MISS GUY AND MR. WARNER. MISS GUY HAS STATED, UNEQUIVOCALLY, THAT WHEN SHE EXAMINED THE BIDS IMMEDIATELY AFTER THEY WERE OPENED NEITHER THE ORIGINAL NOR DUPLICATE BID SUBMITTED BY YOU WAS ACCOMPANIED BY THE AMENDMENT. SHE HAS ALSO CONFIRMED THE TELEPHONE CONVERSATION WITH MR. WARNER REFERRED TO PREVIOUSLY. WE HAVE BEEN INFORMALLY ADVISED THAT THE ENVELOPE WHICH CONTAINED YOUR BID WAS THROWN AWAY BY THE PURCHASING OFFICER SOON AFTER THE CONTENTS WERE REMOVED. IS ALSO INFORMALLY REPORTED TO OUR OFFICE THAT NONE OF THE OTHER GSA EMPLOYEES CONNECTED WITH THIS PROCUREMENT RECALLS SEEING THE AMENDMENT FOUND ATTACHED TO YOUR DUPLICATE BID ON OCTOBER 6, 1964, UNTIL THAT DATE.

WARNER STATES IN HIS AFFIDAVIT THAT AS SOON AS MISS GUY LEFT THE ROOM WITH THE ORIGINAL BIDS, HE BEGAN TABULATING THE BIDS SUBMITTED AND OBSERVED THAT YOUR DUPLICATE BID DID NOT INCLUDE THE AMENDMENT; THAT HE THEN WENT TO THE OFFICE OF GEORGE GRIMSLEY, A GSA EMPLOYEE, AND DISCUSSED THIS WITH HIM AND THEREAFTER PLACED THE AFOREMENTIONED CALL TO MISS GUY.

THERE CAN BE NO QUESTION BUT THAT THE RESPONSIVENESS OF YOUR BID TO THIS INVITATION DEPENDS ON WHETHER IT INCLUDED SPECIAL NOTICE NO. 1, BECAUSE IN ADDITION TO THE AMENDMENT ITSELF PROVIDING THAT FAILURE TO COMPLETE AND RETURN SAME WITH THE BID WOULD RESULT IN REJECTION OF THE BID AS NONRESPONSIVE, THE CHANGES REQUIRED THEREBY ARE SUCH AS TO AFFECT THE QUALITY AND PRICE OF THE ARTICLES OFFERED AND DEVIATION THEREFROM MAY NOT BE WAIVED AS ONE OF FORM RATHER THAN OF SUBSTANCE. ALTHOUGH YOUR AGENT HAS STATED UNDER OATH THAT THE AMENDMENT WAS COMPLETED AND INSERTED IN A SEALED ENVELOPE WITH THE BID, IT IS UNCONTROVERTED THAT IT WAS NOT WITH EITHER THE ORIGINAL OR DUPLICATE BID WHEN FIRST EXAMINED IN THE BID ROOM BY MISS GUY. FURTHERMORE, WE HAVE THE SWORN STATEMENT OF MR. WARNER TO THE EFFECT THAT NO AMENDMENT WAS WITH THE DUPLICATE BID IMMEDIATELY AFTER IT WAS MADE AVAILABLE FOR PUBLIC INSPECTION. IT WAS NOT UNTIL SOME SIX DAYS AFTER BID OPENING THAT THE AMENDMENT WAS SEEN BY ANYONE CONNECTED WITH GSA, AND THEN IT WAS FOUND STAPLED TO THE DUPLICATE BID WITHOUT ANY INDICATION OF WHEN IT WAS ATTACHED OR BY WHOM.

AFTER FULL INVESTIGATION THE ADMINISTRATIVE AGENCY HAS CONCLUDED THAT THE AMENDMENT WAS NOT SUBMITTED WITH THE BID AND IT IS THEREFORE NONRESPONSIVE.

IN MATTERS INVOLVING DISPUTED FACTS IT HAS ALWAYS BEEN THE RULE OF OUR OFFICE THAT THE VERSION SUPPORTED BY THE GOVERNMENT'S RESPONSIBLE AGENTS MUST BE ACCEPTED UNLESS IT CLEARLY APPEARS TO BE WITHOUT ANY REASONABLE FOUNDATION. IN THE CIRCUMSTANCES HERE PRESENTED, WE SEE NO BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE ADMINISTRATIVE DECISION TO REJECT YOUR BID AND AWARD A CONTRACT TO DALLAS, INCORPORATED. YOUR PROTEST IS THEREFORE DENIED.