B-155878, MAR. 18, 1965

B-155878: Mar 18, 1965

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PAINE AND FEEZER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30. AN ADDENDUM TO THE INVITATION WAS ISSUED WHICH CHANGED THE ADVERTISED SPECIFICATIONS IN CERTAIN RESPECTS AND STATED THAT ITS RECEIPT MUST BE ACKNOWLEDGED ON PAGE 2 OF THE BID FORM. WE HAVE RECEIVED AN ADMINISTRATIVE REPORT FROM THE ATOMIC ENERGY COMMISSION CONCERNING THE AWARD TO LAYNE TEXAS COMPANY. THREE BIDS WERE RECEIVED IN THE RESPECTIVE TOTAL AMOUNTS OF $141. THE LOW BID WAS DEFICIENT IN THAT IT FAILED TO ACKNOWLEDGE RECEIPT OF THE ADDENDUM ISSUED ON DECEMBER 3. WE ARE ADVISED BY THE ATOMIC ENERGY COMMISSION THAT ITS REVIEW OF THE CONTENTS OF THE ADDENDUM ISSUED ON DECEMBER 3. INDICATED THAT THE ADDENDUM WAS NOT SUBSTANTIVE ENOUGH TO HAVE PRECLUDED AN AWARD TO LAYNE TEXAS COMPANY.

B-155878, MAR. 18, 1965

TO MCCORMICK, LUSK, PAINE AND FEEZER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1964, ON BEHALF OF MR. FELTON W. COURTNEY, REQUESTING OUR CONSIDERATION OF THE QUESTION AS TO THE PROPRIETY OF MAKING A CONTRACT AWARD FOR WELL DRILLING TO LAYNE TEXAS COMPANY, INCORPORATED, HOUSTON, TEXAS, UNDER INVITATION FOR BIDS NO. 291-65-3, ISSUED BY THE LOS ALAMOS AREA OFFICE OF THE ATOMIC ENERGY COMMISSION ON NOVEMBER 13, 1964, WITH BIDS HAVING BEEN SCHEDULED FOR PUBLIC OPENING AT 2:00 P.M., MOUNTAIN STANDARD TIME, DECEMBER 15, 1964. ON DECEMBER 3, 1964, AN ADDENDUM TO THE INVITATION WAS ISSUED WHICH CHANGED THE ADVERTISED SPECIFICATIONS IN CERTAIN RESPECTS AND STATED THAT ITS RECEIPT MUST BE ACKNOWLEDGED ON PAGE 2 OF THE BID FORM. WE HAVE RECEIVED AN ADMINISTRATIVE REPORT FROM THE ATOMIC ENERGY COMMISSION CONCERNING THE AWARD TO LAYNE TEXAS COMPANY, INCORPORATED.

THREE BIDS WERE RECEIVED IN THE RESPECTIVE TOTAL AMOUNTS OF $141,089, $142,592, AND $147,350 FROM LAYNE TEXAS COMPANY, INCORPORATED, THE ROSCOE MOSS COMPANY, LOS ANGELES, CALIFORNIA, AND MR. FELTON W. COURTNEY. THE LOW BID WAS DEFICIENT IN THAT IT FAILED TO ACKNOWLEDGE RECEIPT OF THE ADDENDUM ISSUED ON DECEMBER 3, 1964.

FAILURE TO ACKNOWLEDGE RECEIPT OF AN ADDENDUM HAS BEEN HELD TO MAKE A BID NONRESPONSIVE IF THE ADDENDUM HAS MORE THAN AN INSIGNIFICANT EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY. 42 COMP. GEN. 490.

HOWEVER, WE ARE ADVISED BY THE ATOMIC ENERGY COMMISSION THAT ITS REVIEW OF THE CONTENTS OF THE ADDENDUM ISSUED ON DECEMBER 3, 1964, INDICATED THAT THE ADDENDUM WAS NOT SUBSTANTIVE ENOUGH TO HAVE PRECLUDED AN AWARD TO LAYNE TEXAS COMPANY, INCORPORATED.

THERE WERE THREE NUMBERED CHANGES IN THE ADDENDUM AND THE FIRST CHANGE SIMPLY CHANGED THE MISSPELLED WORD "TUFT" TO "TUFF.' THE SECOND CHANGE WAS THE ADDITION OF LANGUAGE WHICH HAD BEEN INADVERTENTLY OMITTED FROM THE ORIGINAL SPECIFICATIONS. THE OMITTED LANGUAGE CONCERNED THE PROCEDURE TO BE FOLLOWED IF PERCHED WATER WAS ENCOUNTERED AND THE ATOMIC ENERGY COMMISSION HAS DETERMINED THAT THE INCLUSION OF THE ADDITIONAL LANGUAGE IN THE ADDENDUM DID NOT MATERIALLY AFFECT THE WORK TO BE PERFORMED UNDER THE PROPOSED CONTRACT. THE THIRD CHANGE CORRECTED AN OBVIOUS TYPOGRAPHICAL ERROR IN THAT PART OF THE ORIGINAL SPECIFICATIONS WHICH PROVIDED FOR A PUMP BOWL SETTING AT A DEPTH OF 1,000 FEET AND A HEAD SETTING OF 10 FEET. THE HEAD SETTING SHOULD HAVE BEEN 1,010 FEET AND THE ADDENDUM SO PROVIDED.

IT HAS BEEN REPORTED BY THE ATOMIC ENERGY COMMISSION THAT IT IS ABSURD TO HAVE A 10-FOOT HEAD SETTING AND A 1,000-FOOT PUMP BOWL SETTING AND EXPECT TO DEVELOP A WELL BY PUMPING. FURTHERMORE, IT IS REPORTED THAT THE CHIEF ENGINEER OF LAYNE TEXAS COMPANY, INCORPORATED, CALLED THIS ERROR TO THE ATTENTION OF THE AEC'S ARCHITECT-ENGINEER WHO THEN INITIATED THE ADDENDUM TO THE INVITATION FOR BIDS. EVIDENTLY LAYNE TEXAS COMPANY, INCORPORATED, MUST BE PRESUMED TO HAVE KNOWN THE ACTUAL REQUIREMENT IN THE MATTER BEFORE SUBMISSION OF ITS BID AND THE ATOMIC ENERGY COMMISSION IS CONVINCED THAT THE COMPANY'S FAILURE TO ACKNOWLEDGE RECEIPT OF THE ADDENDUM WAS A MINOR INFORMALITY IN BID WHICH COULD HAVE BEEN WAIVED.

UNDER PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF INVITATION NO. 291 65-3, THE GOVERNMENT RESERVED THE RIGHT TO WAIVE ANY INFORMALITY IN BIDS RECEIVED. THIS RESERVATION OF RIGHT IS CONSISTENT WITH DECISIONS OF OUR OFFICE TO THE EFFECT THAT VARIANCES FROM THE REQUIREMENTS OF AN INVITATION FOR BIDS MAY BE WAIVED, PROVIDED SUCH WAIVER WOULD NOT WORK AN INJUSTICE ON OTHER BIDDERS, AND THE IRREGULARITIES OR DEFECTS IN BID DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE REQUIRED SUPPLIES OR SERVICES. OUR OFFICE HAS ALSO HELD THAT IT IS PROPER THAT THE OFFICIALS OF THE CONTRACTING AGENCY SHOULD HAVE A REASONABLE DEGREE OF DISCRETION IN DETERMINING WHETHER A VARIATION IN BID IS MINOR OR NOT. SEE 40 COMP. GEN. 458.

SINCE IT APPEARS THAT THE ATOMIC ENERGY COMMISSION WOULD HAVE BEEN JUSTIFIED IN WAIVING THE FAILURE OF LAYNE TEXAS COMPANY, INCORPORATED, TO ACKNOWLEDGE RECEIPT OF THE ADDENDUM ON THE BID FORM BECAUSE THE ADDENDUM DID NOT SUBSTANTIALLY CHANGE THE ORIGINAL REQUIREMENTS OF THE INVITATION FOR BIDS, WE FIND NO BASIS FOR CONCLUDING THAT THE CONTRACT AWARD SHOULD BE INVALIDATED. IN OUR OPINION, SINCE THE VALIDITY OF THE CONTRACT AWARD IS SUPPORTED ON THE GROUND THAT THE ADDENDUM WAS NOT SUBSTANTIVE ENOUGH TO HAVE IT PRECLUDED AN AWARD TO LAYNE TEXAS COMPANY, INCORPORATED, IT MAKES NO DIFFERENCE WHETHER RECEIPT OF THE ADDENDUM WAS EFFECTIVELY ACKNOWLEDGED PRIOR TO OPENING OF THAT FIRM'S BID ON THE SCHEDULED BID OPENING DATE.

WE HAVE CONSIDERED YOUR SUGGESTION THAT THE SUCCESSFUL BIDDER IN THIS CASE MAY HAVE SOUGHT TO TAKE ADVANTAGE OF OTHER BIDDERS WHEN IT RECOMMENDED THAT A CHANGE BE MADE IN THE ORIGINAL SPECIFICATIONS. YOU INDICATED IN THAT CONNECTION THAT LAYNE TEXAS HAD BEEN AWARDED A CONTRACT IN 1961 ON AN ADVERTISEMENT ISSUED BY THE BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, WHEN THE LOWEST BID WAS REJECTED BECAUSE THE BIDDER FAILED TO ACKNOWLEDGE RECEIPT OF AN ADDENDUM TO THE ADVERTISEMENT. HOWEVER, IT IS CLEAR THAT THIS PRIOR TRANSACTION CANNOT BE REGARDED AS SUFFICIENT TO JUSTIFY A CONCLUSION THAT THE CONTRACT AWARD UNDER THE ATOMIC ENERGY COMMISSION'S INVITATION FOR BIDS NO. 291-65-3 WAS IMPROPER.

WE HAVE ALSO CONSIDERED THE COMMENTS MADE IN A LETTER DATED FEBRUARY 20, 1965, FROM THE EVERETT D. BURGETT DRILLING COMPANY, ON BEHALF OF MR. COURTNEY. IT IS ADMITTED IN THAT LETTER THAT CHANGES NOS. 1 AND 2 OF THE ADDENDUM WERE OF NO PARTICULAR IMPORTANCE, BUT IT IS CONTENDED THAT CHANGE NO. 3 CONSTITUTED AN ESSENTIAL CHANGE IN THE REQUIREMENTS OF THE INVITATION BECAUSE, IF A BID HAD BEEN ACCEPTED ON THE BASIS THAT A HEAD SETTING OF ONLY 10 FEET WOULD BE REQUIRED, THE GOVERNMENT WOULD HAVE FOUND IT NECESSARY TO NEGOTIATE WITH THE BIDDER TO PROVIDE A HEAD SETTING OF 1,010 FEET. WE RECOGNIZE THIS POSSIBILITY BUT WE MUST ALSO RECOGNIZE THE REPORT OF THE ATOMIC ENERGY COMMISSION THAT IT WOULD BE ABSURD FROM AN ENGINEERING STANDPOINT TO EXPECT SATISFACTORY RESULTS FROM A 10-FOOT HEAD SETTING WHICH WOULD ALLOW THE WATER TO BE RAISED ONLY 10 FEET FROM THE BOWL LEVEL WHICH WOULD BE FAR BELOW THE GROUND SURFACE. IT DOES NOT APPEAR TO BE REASONABLE TO CONCLUDE THAT ALL BIDDERS WERE NOT AWARE OF THE APPARENT MISTAKE IN THE ORIGINAL SPECIFICATIONS AND IT WOULD SEEM THAT THE SPECIFIC RECOMMENDATION MADE IN THE MATTER BY THE CHIEF ENGINEER OF LAYNE TEXAS COMPANY, INCORPORATED, WAS SUFFICIENT IN ITSELF TO SHOW THAT THE COMPANY KNEW OF THE ACTUAL REQUIREMENT, NOTWITHSTANDING ITS FAILURE TO FURNISH A WRITTEN ACKNOWLEDGMENT OF RECEIPT OF THE ADDENDUM.

IN THE PARTICULAR CIRCUMSTANCES, THE PROTEST MADE TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED. COPIES OF THIS DECISION ARE BEING FORWARDED TO THE EVERETT D. BURGETT DRILLING COMPANY AND THE ATOMIC ENERGY COMMISSION.