B-157779, DEC. 15, 1965

B-157779: Dec 15, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12. IF A BID WAS SUBMITTED ON LOT II IT MUST BE FOR THE TOTAL MULTI-YEAR REQUIREMENTS TO BE RESPONSIVE. COGNIZANT TECHNICAL PERSONNEL ADVISED THE PROCURING OFFICIALS THAT THE AN/ALR-15 WAS UNDERGOING A TECHNICAL EVALUATION WHICH COULD RESULT IN DELETION OF ONE OF THE SYSTEMS COMPONENTS. AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED PRIOR TO BID OPENING. IT WAS ALSO DECIDED TO MAKE THE AWARD FOR LOT II. 716.00 SINCE YOUR BID WAS CONSIDERED NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE THE AMENDMENT PRIOR TO OPENING. WE WERE ADVISED ON NOVEMBER 8. THAT AWARD WAS BEING MADE TO BARNES AND REINECKE AS THE LOW RESPONSIVE BIDDER. IN PROTESTING THE AWARD TO ANOTHER COMPANY YOU CONTEND THAT THE AMENDMENT WAS NOT RECEIVED BY YOUR COMPANY PRIOR TO BID OPENING.

B-157779, DEC. 15, 1965

TO MONMOUTH ELECTRIC CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1965, PROTESTING AGAINST REJECTION OF YOUR BID BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, PURSUANT TO INVITATION FOR BIDS NO. 383-91 66,AND AGAINST AWARD OF A CONTRACT TO ANY HIGHER BIDDER.

THE SUBJECT INVITATION SOLICITED BIDS FOR ONE YEAR (LOT I) AND MULTI-YEAR (LOT II) REQUIREMENTS FOR COMPONENTS OF THE AN/ALR 15COUNTERMEASURES RECEIVING SET AND RELATED DATA. THE INVITATION PROVIDED THAT TO BE RESPONSIVE A BID MUST BE SUBMITTED ON THE TOTAL REQUIREMENTS FOR LOT I, AND IF A BID WAS SUBMITTED ON LOT II IT MUST BE FOR THE TOTAL MULTI-YEAR REQUIREMENTS TO BE RESPONSIVE. THE INVITATION ALSO PROVIDED THAT A SINGLE AWARD WOULD BE MADE TO THE LOW OVERALL BIDDER FOR EITHER LOT I OR LOT II, AND SET OUT THE METHOD OF DETERMINING THE LOWEST BIDDER UNDER EACH LOT.

SUBSEQUENT TO ISSUANCE OF THE INVITATION, COGNIZANT TECHNICAL PERSONNEL ADVISED THE PROCURING OFFICIALS THAT THE AN/ALR-15 WAS UNDERGOING A TECHNICAL EVALUATION WHICH COULD RESULT IN DELETION OF ONE OF THE SYSTEMS COMPONENTS, THE ANTENNA. THEREFORE, AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED PRIOR TO BID OPENING, RESERVING TO THE GOVERNMENT THE RIGHT TO DELETE ANY ITEMS PRIOR TO EVALUATION AND AWARD. AT THE TIME OF BID OPENING ON SEPTEMBER 13, 1965, ALL BIDDERS EXCEPT YOUR COMPANY HAD ACKNOWLEDGED RECEIPT OF THE AMENDMENT. AFTER BID OPENING, YOU OBTAINED THE AMENDMENT AND FILED A SIGNED COPY WITH THE PROCUREMENT OFFICE. TECHNICAL PERSONNEL DECIDED AFTER BID OPENING THAT THE ANTENNA CALLED FOR BY THE INVITATION WOULD BE REPLACED BY AN ANTENNA OF IMPROVED DESIGN AND PERFORMANCE. IT WAS ALSO DECIDED TO MAKE THE AWARD FOR LOT II, THE MULTI- YEAR REQUIREMENT. EVALUATION OF BIDS ON THIS BASIS, LOT II WITHOUT THE ANTENNA, RESULTS IN THE FOLLOWING STANDING:

CHART

MONMOUTH ELECTRIC CO., INC. $642,354.34

BARNS AND REINECKE, INC. 747,235.26

RODALE ELECTRONICS, INC. 756,716.00

SINCE YOUR BID WAS CONSIDERED NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE THE AMENDMENT PRIOR TO OPENING, AND BECAUSE OF THE URGENT NEED FOR THE ITEM, WE WERE ADVISED ON NOVEMBER 8, 1965, THAT AWARD WAS BEING MADE TO BARNES AND REINECKE AS THE LOW RESPONSIVE BIDDER.

IN PROTESTING THE AWARD TO ANOTHER COMPANY YOU CONTEND THAT THE AMENDMENT WAS NOT RECEIVED BY YOUR COMPANY PRIOR TO BID OPENING, AND THAT THE FAILURE TO RECEIVE SAME WAS NOT DUE TO YOUR FAULT; THAT WHEN YOU LEARNED OF THE AMENDMENT AT THE BID OPENING YOU TOOK IMMEDIATE STEPS TO AND DID ACKNOWLEDGE IT; THAT THE AMENDMENT IS NOT "MATERIAL AND IN NO WAY AFFECTS THE PRICE, DELIVERY SCHEDULE, SPECIFICATIONS OR OTHER SUBSTANTIVE PROVISIONS OF THE CONTRACT" AND MAY THEREFORE BE WAIVED; AND THAT IT WOULD BE TO THE GOVERNMENT'S ADVANTAGE TO ACCEPT YOUR BID.

IT HAS LONG BEEN THE RULE OF THIS OFFICE THAT THE FAILURE TO ACKNOWLEDGE AMENDMENTS THAT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE SUPPLIES OR SERVICES, IS A MATERIAL DEVIATION WHICH MAY NOT BE WAIVED AND RENDERS THE BID SUBMITTED NONRESPONSIVE. SEE 37 COMP. GEN. 785; B-141299, DECEMBER 14, 1959. THE RATIONALE FOR THIS RULE IS SET OUT IN DECISION B-131796, JUNE 14, 1957, AS FOLLOWS:

"A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE TWO PARTIES. IT IS WELL RECOGNIZED THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE. YOUR OFFER PROPOSED ONLY TO COMPLY WITH THE PROVISIONS OF THE ORIGINAL INVITATION. THEREFORE, THE GOVERNMENT COULD NOT, WITHOUT YOUR CONSENT, HAVE ACCEPTED YOUR OFFER AND REQUIRED PERFORMANCE IN ACCORDANCE WITH THE INVITATION AS AMENDED BY THE ADDENDUM. TO GIVE YOU AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION AS AMENDED, OR TO PRECLUDE AWARD TO YOU BY ALLEGING NON-RECEIPT OF THE ADDENDUM, OR SAYING NOTHING, WOULD GIVE YOU AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION. SUCH ADVANTAGE WOULD BE CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT.'

CONTRARY TO YOUR CONTENTION THAT THE AMENDMENT WAS NOT MATERIAL, IT IS OUR OPINION THAT IT MUST BE CONSIDERED MATERIAL SINCE IT AFFECTED BOTH THE QUANTITY AND PRICE OF THE ITEMS BEING PROCURED. ADDITIONALLY, SINCE THE INVITATION, AS ORIGINALLY ISSUED, REQUIRED ANY BID ON LOT II TO BE ON EVERY ITEM INCLUDED THEREIN, YOUR BID WAS IN EFFECT AN "ALL OR NONE" BID OR OFFER. BECAUSE YOU DID NOT ACKNOWLEDGE THE AMENDMENT RELAXING THE "ALL OR NONE" REQUIREMENT PRIOR TO BID OPENING, ACCEPTANCE OF YOUR OFFER WOULD HAVE RESULTED IN A CONTRACT FOR THE ENTIRE REQUIREMENT OF LOT II, CONTRARY TO THE GOVERNMENT'S INTENTION AND NEEDS. YOUR ACKNOWLEDGMENT OF THE AMENDMENT AFTER BID OPENING MAY NOT BE GIVEN EFFECT BECAUSE TO DO SO WOULD GIVE YOU THE OPTION, BY SUCH ACKNOWLEDGEMENT, OF BECOMING ELIGIBLE FOR AWARD, OR OF REMAINING SILENT AND HAVING YOUR BID REJECTED.

ACCORDINGLY, THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID AS NONRESPONSIVE WAS PROPER, AND YOUR PROTEST IS, THEREFORE, DENIED.