B-158372, FEB. 7, 1966

B-158372, FEB. 7, 1966

TO MR. ELDON H. REILEY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1966, PROTESTING THAT THE BID OF FIRE DETECTION SERVICE, INC., FOR ARCHITECT OF THE CAPITOL JOB NO. 65125 SHOULD NOT HAVE BEEN REJECTED.

FOR THE SUBJECT JOB, THERE WERE ISSUED AN INVITATION FOR BIDS AND TWO SUBSEQUENT ADDENDA. THE ADDENDA WERE ISSUED 5 AND 2 DAYS, RESPECTIVELY, BEFORE THE DECEMBER 22, 1965, BID OPENING DATE SPECIFIED IN THE INVITATION FOR BIDS. THE BID OPENING TIME WAS SET FOR 3 P.M., E.S.T.

THREE BIDS WERE OPENED AT THE APPOINTED TIME. NO BID WAS RECEIVED FROM FIRE DETECTION SERVICE. FIFTY-ONE MINUTES LATER THERE WAS RECEIVED AT THE OFFICE OF THE ARCHITECT OF THE CAPITOL A TELEGRAM FILED BY FIRE DETECTION SERVICE IN SPOKANE, WASHINGTON, AT 11:08 A.M., P.S.T. (2:08 .M., E.S.T.). THE TELEGRAM ACKNOWLEDGED THE RECEIPT OF ADDENDUM NO. 1. THE NEXT DAY, DECEMBER 23, 1965, AT 10:43 A.M., E.S.T., THERE WAS RECEIVED FROM FIRE DETECTION SERVICE AN ENVELOPE PURPORTING TO CONTAIN A BID ON THE SUBJECT INVITATION. THE ENVELOPE IS STAMPED AIRMAIL AND CERTIFIED MAIL AND HAS A SPOKANE, WASHINGTON, METERED POSTMARK DATED DECEMBER 20, 1965. IN A LETTER FROM THE SUPERINTENDENT OF MAILS, UNITED STATES POST OFFICE, SPOKANE, WASHINGTON, IT IS STATED THAT THE TIME OF MAILING WAS 5:15 P.M. ALSO, ON DECEMBER 23, 1965, AT 1:51 P.M., E.S.T., THERE WAS RECEIVED FROM FIRE DETECTION SERVICE A TELEGRAM FILED IN SPOKANE, WASHINGTON, AT 9:25 A.M., P.S.T. (12:25 P.M., E.S.T.). THAT TELEGRAM ACKNOWLEDGED RECEIPT OF ADDENDUM NO. 2.

THE FIRE DETECTION SERVICE BID HAS NEVER BEEN OPENED BECAUSE WHILE THE ARCHITECT OF THE CAPITOL BELIEVES THAT THE BID AND THE FIRST TELEGRAM COULD BE CONSIDERED AS HAVING BEEN TIMELY SENT UNDER THE INVITATION BIDDING CONDITIONS, HE BELIEVES THAT THE DISPATCH OF THE SECOND TELEGRAM AFTER THE OPENING OF BIDS PRECLUDES THE BID FROM BEING CONSIDERED RESPONSIVE BECAUSE IT IS AN UNTIMELY ACKNOWLEDGMENT OF AN ADDENDUM PROVIDING FOR A MATERIAL CHANGE IN CONTRACT REQUIREMENTS AFFECTING THE QUANTITY AND QUALITY OF THE WORK TO BE PERFORMED. IN THE CIRCUMSTANCES, ON JANUARY 11, 1966, AN AWARD WAS MADE ON THE BASIS OF THE LOWEST BID OPENED ON DECEMBER 22, 1965.

WHILE THE ARCHITECT OF THE CAPITOL IS WILLING TO CONSIDER THE FIRST TELEGRAM AS TIMELY SENT, WE NOTE THAT IT WAS FILED ONLY 52 MINUTES BEFORE BID OPENING TIME. IN THAT CONNECTION, IN OUR DECISION OF JULY 12, 1962, B -149345, OUR OFFICE AGREED THAT, WHERE A BIDDER ALLOWED ONLY 55 OR 57 MINUTES FOR ARRIVAL OF A TELEGRAM WHICH ARRIVED LATE, THE CONTRACTING OFFICER WAS CORRECT IN DISREGARDING IT. IN ANOTHER DECISION, B-155061, OCTOBER 9, 1964, IT WAS HELD THAT A LATE TELEGRAM WHICH WAS FILED 66 MINUTES BEFORE BID OPENING TIME HAD NOT BEEN FILED IN AMPLE TIME. THUS, IT IS NOT SO APPARENT THAT THE FIRST TELEGRAM HERE, ACKNOWLEDGING RECEIPT OF ADDENDUM 1 WHICH AMPLIFIED A DRAWING WITH RESPECT TO THE WORK TO BE DONE, SHOULD HAVE BEEN CONSIDERED AS TIMELY SENT.

WITH REGARD TO THE SECOND TELEGRAM, WHILE FIRE DETECTION SERVICE STATES THAT THE SECOND ADDENDUM HAD NO AFFECT ON ITS BID PRICE, THE ENGINEER FOR THE ARCHITECT OF THE CAPITOL IS OF THE OPINION THAT SUCH CHANGE AS IS CONTAINED IN THE ADDENDUM WOULD ORDINARILY AFFECT THE QUANTITY AND QUALITY OF THE WORK WITH A RESULTANT CHANGE IN PRICE. IN THAT CONNECTION, IT IS A GENERAL RULE THAT ANY MODIFICATION WHICH WOULD AFFECT THE PRICE, QUANTITY OR QUALITY OF THE WORK TO BE PERFORMED IS TO BE DISPATCHED IN AMPLE TIME TO BE RECEIVED PRIOR TO THE OPENING OF BIDS. ADDITIONALLY, OUR OFFICE HAS HELD THAT IF A BIDDER DOES NOT RECEIVE AN ADDENDUM MAKING A MATERIAL CHANGE, WITH THE RESULT, OF COURSE, THAT IT IS UNABLE TO ACKNOWLEDGE IT BEFORE BID OPENING, THE FAILURE TO ACKNOWLEDGE THE ADDENDUM IS FATAL EVEN IF THE FAILURE TO RECEIVE IT IS CAUSED BY THE PROCUREMENT OFFICE, THE MAILS OR BY SOME ACTION OF THE BIDDER. B-148790, JUNE 28, 1962, AND B- 151040, OCTOBER 7, 1963.

HOWEVER, WHILE IN LIGHT OF THE FOREGOING IT DOES NOT APPEAR THAT THE BID OF FIRE DETECTION SERVICE WAS FOR CONSIDERATION, IT DOES APPEAR FROM THE RECORD THAT THE CONTRACTING OFFICE WAS AWARE OF THE POSSIBILITY THAT FIRE DETECTION SERVICE MIGHT BE A BIDDER FOR THE WORK SINCE IT HAD REQUESTED AN INVITATION AND HAD BEEN SENT ONE AND ALSO ADDENDUM 1 ON DECEMBER 18, 1965. IN THE CIRCUMSTANCES, WE BELIEVE THAT THE CONTRACTING OFFICE WAS REMISS IN NOT PROVIDING AMPLE TIME FOR ACKNOWLEDGMENT OF THE ADDENDUM, HAVING ISSUED IT ONLY 2 DAYS PRIOR TO BID OPENING, WITH NOTICE THAT THE ADDENDUM IN THAT TIME HAD TO ARRIVE AT THE WEST COAST, BE CONSIDERED THERE BY THE BIDDER, AND THEN ACKNOWLEDGED IN AMPLE TIME TO BE RECEIVED BEFORE BID OPENING. ACCORDINGLY, WE ARE SUGGESTING IN A SEPARATE LETTER TODAY TO THE ARCHITECT OF THE CAPITOL THAT IN THE FUTURE SUFFICIENT TIME BE PROVIDED SO THAT ALL PROSPECTIVE BIDDERS WILL HAVE AMPLE TIME TO CONSIDER AND ACKNOWLEDGE ADDENDA TO INVITATIONS.