B-158447, MAY 19, 1966

B-158447: May 19, 1966

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29. BIDS WERE REQUESTED FOR FURNISHING CERTAIN AUXILIARY EMERGENCY LIGHTING AS DESCRIBED IN THE INVITATION FOR BIDS. WHICH WAS ISSUED DECEMBER 9. AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED DECEMBER 17. WHICH ARE REPORTED BY THE VETERANS ADMINISTRATION TO HAVE A MATERIAL EFFECT ON PRICE AND QUALITY. WHEN THE BIDS WERE OPENED. YOUR BID WAS LOW IN THE AMOUNT OF $6. THE SECOND LOW BID WAS SUBMITTED BY WHITE PLAINS ELECTRICAL SUPPLY CO. ADVISED YOU THAT YOUR BID WAS THEREFORE CONSIDERED AS NONRESPONSIVE AND THAT AWARD HAD BEEN MADE TO WHITE PLAINS ELECTRICAL SUPPLY CO. YOU HAVE PROTESTED THIS ACTION ON THE GROUND THAT YOU DID NOT RECEIVE A COPY OF THE AMENDMENT AND THEREFORE COULD NOT ACKNOWLEDGE AND AGREE TO SAME.

B-158447, MAY 19, 1966

TO PROMPT ELECTRICAL SUPPLY CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1966, WITH ENCLOSURES, AND TO SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST IN CONNECTION WITH INVITATION FOR BIDS NO. 66-50, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, TOPEKA, KANSAS.

BIDS WERE REQUESTED FOR FURNISHING CERTAIN AUXILIARY EMERGENCY LIGHTING AS DESCRIBED IN THE INVITATION FOR BIDS, WHICH WAS ISSUED DECEMBER 9, 1965, AND WHICH PROVIDED THAT BIDS WOULD BE OPENED ON DECEMBER 28, 1965, AT 10 A.M., C.S.T. AFTER ISSUANCE OF THE IFB, ONE OF THE PROSPECTIVE BIDDERS DIRECTED THE ATTENTION OF THE VETERANS ADMINISTRATION TO SEVERAL INSTANCES IN WHICH THE INVITATION APPEARED TO BE SOMEWHAT RESTRICTIVE, TO ANOTHER INSTANCE WHERE MONEY COULD BE SAVED WITHOUT SACRIFICING QUALITY, AND TO CERTAIN LANGUAGE WHICH REQUIRED CLARIFICATION. ACCORDINGLY, AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED DECEMBER 17, 1965, AND MAILED TO ALL PROSPECTIVE BIDDERS, INCLUDING YOUR COMPANY. THIS AMENDMENT MADE A NUMBER OF CHANGES IN THE SPECIFICATIONS, WHICH ARE REPORTED BY THE VETERANS ADMINISTRATION TO HAVE A MATERIAL EFFECT ON PRICE AND QUALITY, THE ESTIMATED EFFECT ON PRICE BEING AN INCREASE OF $400.50. THE AMENDMENT ALSO REQUIRED THAT EACH BIDDER AGREE IN WRITING TO THE CHANGES AND ADVISED BIDDERS THAT FAILURE TO SO AGREE BY BID OPENING DATE WOULD CAUSE THE BID TO BE REJECTED AS NONRESPONSIVE.

WHEN THE BIDS WERE OPENED, YOUR BID WAS LOW IN THE AMOUNT OF $6,745.56, LESS 2 PERCENT DISCOUNT 30 CALENDAR DAYS, OR A NET OF $6,610.65. THE SECOND LOW BID WAS SUBMITTED BY WHITE PLAINS ELECTRICAL SUPPLY CO., INC., IN THE AMOUNT OF $6,853.26, LESS 1 PERCENT DISCOUNT 20 CALENDAR DAYS, OR A NET OF $6,784.73. HOWEVER, YOU DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENT, AND THE CONTRACTING OFFICER, BY LETTER OF JANUARY 20, 1966, ADVISED YOU THAT YOUR BID WAS THEREFORE CONSIDERED AS NONRESPONSIVE AND THAT AWARD HAD BEEN MADE TO WHITE PLAINS ELECTRICAL SUPPLY CO., INC., AS NEXT LOW BIDDER.

YOU HAVE PROTESTED THIS ACTION ON THE GROUND THAT YOU DID NOT RECEIVE A COPY OF THE AMENDMENT AND THEREFORE COULD NOT ACKNOWLEDGE AND AGREE TO SAME, AND YOU HAVE ALSO FORWARDED COPIES OF AMENDMENTS AND ENVELOPES IN WHICH THEY WERE DISPATCHED, WHICH INDICATE THAT CERTAIN INSTALLATIONS OF THE DEPARTMENTS OF THE ARMY AND NAVY FORWARD AMENDMENTS TO PROSPECTIVE BIDDERS BY SPECIAL DELIVERY OR CERTIFIED MAIL, IN ORDER TO INSURE PROMPT DELIVERY OF SAME.

PERTINENT SECTIONS OF THE FEDERAL PROCUREMENT REGULATIONS, PROVIDE, IN PART, AS FOLLOWS:

"1-2.207 AMENDMENT OF INVITATIONS FOR BIDS.

"/A) IF AFTER ISSUANCE OF INVITATIONS FOR BIDS BUT BEFORE THE TIME SET FOR OPENING OF BIDS IT BECOMES NECESSARY TO MAKE CHANGES IN QUANTITIES, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC., OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION, SUCH CHANGES SHALL BE ACCOMPLISHED BY ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS. THE AMENDMENT SHALL BE SENT TO EACH CONCERN TO WHOM THE INVITATION FOR BIDS HAS BEEN FURNISHED AND SHALL BE DISPLAYED IN THE BID ROOM.

"1-2.301 RESPONSIVENESS OF BIDS.

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"1-2.404-2 REJECTION OF INDIVIDUAL BIDS.

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.

"1-2.405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS.

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"/D) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF:

"/1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID HEREON; OR

"/2) THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.'

AS INDICATED IN THE ABOVE QUOTED REGULATIONS, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS IN ORDER TO BE CONSIDERED FOR AWARD, AND ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION MUST BE REJECTED AS NONRESPONSIVE. THE ONLY VARIATIONS OR DEFECTS THAT MAY BE WAIVED OR PERMITTED TO BE CURED AS MINOR INFORMALITIES OR IRREGULARITIES ARE THOSE WHICH RELATE MERELY TO FORM, RATHER THAN SUBSTANCE, OR WHICH HAVE ONLY A NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE SUPPLIES OR SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. AS SPECIFICALLY PROVIDED IN SECTION 1-2.405 (D), THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT MAY BE WAIVED OR CORRECTED ONLY IF THE CHANGES MADE BY THE AMENDMENT MEET THE ABOVE TESTS OF TRIVIALITY, OR IF THE BID AS SUBMITTED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT AND AGREES TO THE TERMS THEREOF.

ADMITTEDLY, THE FORWARDING OF AN AMENDMENT BY CERTIFIED MAIL WOULD TEND TO INSURE ITS RECEIPT BY THE ADDRESSEE AND THE USE OF SPECIAL DELIVERY WOULD SPEED UP ITS TRANSMISSION, BUT THERE IS NO REGULATORY REQUIREMENT THAT ANY PARTICULAR METHOD BE USED IN THE DELIVERY OF AMENDMENTS. SECTION 1-2.207 (A) PROVIDES MERELY THAT THE AMENDMENT SHALL BE "SENT" TO EACH CONCERN TO WHOM THE INVITATION FOR BIDS HAS BEEN FURNISHED AND THAT A COPY SHALL BE DISPLAYED IN THE BID ROOM. THE RECORDS OF THE VETERANS ADMINISTRATION INDICATE THAT THIS AMENDMENT WAS MAILED TO YOUR COMPANY ON DECEMBER 17, 1965, AND WHILE THE GOVERNMENT MAKES EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF INVITATIONS AND AMENDMENTS, FAILURE OF SUCH RECEPTION IN A PARTICULAR CASE DOES NOT WARRANT CONSIDERATION OF A BID IN CONTRAVENTION OF THE WELL ESTABLISHED GENERAL RULE THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE WHERE SUCH AMENDMENT COULD, AS HERE, AFFECT PRICE, QUANTITY OR QUALITY. 42 COMP. GEN. 950; 40 ID. 785; B-154855, SEPTEMBER 21, 1964; B-153271, JANUARY 21, 1964. PERMIT A BIDDER TO PERFORM IN ACCORDANCE WITH THE INVITATION, WITHOUT REFERENCE TO THE REQUIREMENTS OF THE UNACKNOWLEDGED AMENDMENT WOULD BE CONTRARY TO THE STATUTES GOVERNING ADVERTISED PROCUREMENTS. UNITED STATES V. ELLICOTT, 223 U.S. 525. ON THE OTHER HAND, TO PERMIT A BIDDER TO AMEND HIS BID AFTER OPENING TO CONFORM TO THE SPECIFICATIONS, AS MATERIALLY MODIFIED BY THE AMENDMENT, WOULD ALSO CONTRAVENE THE COMPETITIVE BIDDING STATUTES. 40 COMP. GEN. 447, 448.

CONSIDERATION OF THE FOREGOING REQUIRES THE CONCLUSION THAT APPLICABLE STATUTES, REGULATIONS, AND DECISIONS OF THIS OFFICE SUPPORT THE ACTION OF THE VETERANS ADMINISTRATION IN REJECTING YOUR BID. YOUR PROTEST MUST THEREFORE BE DENIED.