B-156978, JUL. 19, 1965

B-156978: Jul 19, 1965

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J. SORENSON CO.: REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 9. THE RECORD IN THIS CASE SHOWS THE BID SUBMITTED BY YOUR COMPANY WAS REJECTED FOR TWO REASONS: (1) IT WAS DETERMINED TO BE AN INEXCUSABLE LATE BID AND (2) IT DID NOT ACKNOWLEDGE RECEIPT OF INVITATION AMENDMENT 2 WHICH INCLUDED A MODIFICATION OF THE MINIMUM PREVAILING WAGE RATE SCHEDULE. IT IS AN ESTABLISHED GENERAL RULE OF OUR OFFICE THAT THE FAILURE TO ACKNOWLEDGE WITH A BID THE RECEIPT OF AN AMENDMENT MODIFYING PREVAILING MINIMUM WAGE RATES INCLUDED IN THE ORIGINAL INVITATION FOR BIDS RENDERS THE BID NONRESPONSIVE. YOUR ATTORNEY CONTENDED TO THE CONTRACTING OFFICIALS BEFORE AN AWARD WAS MADE TO THE SUCCESSFUL BIDDER THAT SINCE PARAGRAPH 12-404.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT MODIFICATIONS OF ORIGINAL WAGE DETERMINATIONS SHALL BE MADE PART OF THE PROPOSED CONTRACT IF RECEIVED PRIOR TO THE AWARD OF THE CONTRACT.

B-156978, JUL. 19, 1965

TO M. J. SORENSON CO.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 9, 1965, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS CIVENG-25-066-65-81.

THE RECORD IN THIS CASE SHOWS THE BID SUBMITTED BY YOUR COMPANY WAS REJECTED FOR TWO REASONS: (1) IT WAS DETERMINED TO BE AN INEXCUSABLE LATE BID AND (2) IT DID NOT ACKNOWLEDGE RECEIPT OF INVITATION AMENDMENT 2 WHICH INCLUDED A MODIFICATION OF THE MINIMUM PREVAILING WAGE RATE SCHEDULE.

IT IS AN ESTABLISHED GENERAL RULE OF OUR OFFICE THAT THE FAILURE TO ACKNOWLEDGE WITH A BID THE RECEIPT OF AN AMENDMENT MODIFYING PREVAILING MINIMUM WAGE RATES INCLUDED IN THE ORIGINAL INVITATION FOR BIDS RENDERS THE BID NONRESPONSIVE. B-149315, AUGUST 28, 1962, AND DECISIONS CITED THEREIN.

YOUR ATTORNEY CONTENDED TO THE CONTRACTING OFFICIALS BEFORE AN AWARD WAS MADE TO THE SUCCESSFUL BIDDER THAT SINCE PARAGRAPH 12-404.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT MODIFICATIONS OF ORIGINAL WAGE DETERMINATIONS SHALL BE MADE PART OF THE PROPOSED CONTRACT IF RECEIVED PRIOR TO THE AWARD OF THE CONTRACT, THE WAGE MODIFICATION SHOULD BE CONSIDERED AS HAVING BEEN INCORPORATED BY REFERENCE IN THE ORIGINAL INVITATION FOR BIDS IN THAT ASPR HAS THE FORCE AND EFFECT OF LAW UNDER THE DOCTRINE OF G. L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, 312 F.2D 418 AND 320 F.2D 345.

HOWEVER, ASPR 2-405 AUTHORIZES THE WAIVER OF A BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION ONLY IF---

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

"/B) THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PURCHASING ACTIVITY *

UNDER THE CHRISTIAN DOCTRINE ASPR 2-405 WOULD HAVE THE SAME FORCE AND EFFECT OF LAW AS ASPR 12-404.2.

ADDITIONALLY, YOUR ATTORNEY CONTENDED THAT OUR DECISION B-143482, JULY 22, 1960 (40 COMP. GEN. 48), REQUIRED THAT THE WAGE MODIFICATION BE CONSIDERED A PART OF THE INVITATION FOR BIDS. HOWEVER, THAT DECISION IS DISTINGUISHABLE FROM THE IMMEDIATE SITUATION ON THE FACTS IN THAT IN THE CITED DECISION NO WAGE RATE SCHEDULE WAS INCLUDED IN THE ORIGINAL SPECIFICATIONS AND THE AMENDMENT INCORPORATING THE SCHEDULE WAS STAPLED TO AND DELIVERED WITH THE ORIGINAL SPECIFICATIONS WHEREAS IN THE IMMEDIATE CASE THE ORIGINAL SPECIFICATIONS CONTAINED A WAGE RATE SCHEDULE AND THE AMENDMENT MODIFYING THE WAGE RATES WAS MAILED SEPARATELY. ACCORDINGLY, THE OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY PRESENTING EVIDENCE OUTSIDE THE BID THAT THE AMENDMENT HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT, WHICH OPTION IS AVAILABLE IN THIS CASE, WAS NOT PRESENT IN THE CITED CASE FOR THE REASONS INDICATED THEREIN.

IN VIEW OF THE FOREGOING, IT APPEARS THAT THE DETERMINATION TO REJECT YOUR BID FOR FAILURE TO ACKNOWLEDGE AMENDMENT 2 WAS PROPER. AS A PROPER BASIS FOR REJECTION EXISTED, IT IS ACADEMIC WHETHER YOUR BID SHOULD HAVE BEEN CONSIDERED AS TIMELY RECEIVED AND IT IS THEREFORE NOT NECESSARY THAT WE CONSIDER THAT ASPECT OF THE CASE.