B-160407, NOV. 25, 1966

B-160407: Nov 25, 1966

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21. QUOTATIONS WERE CALLED FOR AS FOLLOWS: "FIRST WASHING ?......... THREE AMENDMENTS WERE ISSUED TO THE INVITATION FOR BIDS. AMENDMENT 1 WAS ISSUED SIMULTANEOUSLY WITH THE INVITATION FOR BIDS TO CHANGE THE BID OPENING DATE AND TO INCORPORATE THE SERVICE CONTRACT ACT OF 1965. AMENDMENT 2 WAS ISSUED TO SPECIFY BID OPENING TIME AS E.D.S.T. AMENDMENT 3 WAS ISSUED SEPTEMBER 13. THIS ARTICLE STATES THAT AWARD WILL BE MADE ON AN "ALL OR NONE" BASIS TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. ARTICLE 22 FURTHER STATES THAT THE LOW BID WILL BE DETERMINED BY ADDING THE THREE PRICES QUOTED ON PAGE 1 TO OBTAIN A TOTAL. BIDS WERE OPENED SEPTEMBER 16.

B-160407, NOV. 25, 1966

TO CLEANING CONTRACTORS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21, 1966, TO GODDARD SPACE FLIGHT CENTER (GSFC) PROTESTING THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. S 06805 ISSUED AUGUST 24, 1966.

THE INVITATION SOLICITED BIDS FOR THE WINDOW WASHING OF 26 BUILDINGS AT GSFC. ARTICLE "PERIOD OF PERFORMANCE," PROVIDED FOR COMPLETION OF THE WASHING AS FOLLOWS:

"FIRST WASHING - SEPTEMBER 31, 1966 (ALL BUILDINGS AS SPECIFIED)

"SECOND WASHING - JANUARY 20, 1967 (ONLY BUILDINGS NO. 3, 6, 7, 8 AND 14)

"THIRD WASHING - APRIL 20, 1967 (ALL BUILDINGS AS SPECIFIED)" THUS, THE WORK SCHEDULE CONTEMPLATED 3 COMPLETE WINDOW WASHINGS FOR 5 BUILDINGS AND 2 COMPLETE WINDOW WASHING FOR 21 BUILDINGS.

IN THE SCHEDULE SET FORTH ON PAGE 1 OF THE INVITATION FOR BIDS, QUOTATIONS WERE CALLED FOR AS FOLLOWS:

"FIRST WASHING ?.........

SECOND WASHING ?.........

THIRD WASHING ?.........

TOTAL ?.........'

THREE AMENDMENTS WERE ISSUED TO THE INVITATION FOR BIDS. AMENDMENT 1 WAS ISSUED SIMULTANEOUSLY WITH THE INVITATION FOR BIDS TO CHANGE THE BID OPENING DATE AND TO INCORPORATE THE SERVICE CONTRACT ACT OF 1965. AMENDMENT 2 WAS ISSUED TO SPECIFY BID OPENING TIME AS E.D.S.T. AMENDMENT 3 WAS ISSUED SEPTEMBER 13, 1966, TO INCORPORATE ARTICLE 22,"EVALUATION OF BIDS," INTO THE INVITATION FOR BIDS. THIS ARTICLE STATES THAT AWARD WILL BE MADE ON AN "ALL OR NONE" BASIS TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. ARTICLE 22 FURTHER STATES THAT THE LOW BID WILL BE DETERMINED BY ADDING THE THREE PRICES QUOTED ON PAGE 1 TO OBTAIN A TOTAL.

BIDS WERE OPENED SEPTEMBER 16, 1966, WITH THE FOLLOWING RESULTS:

TABLE

CITY WINDOW CLEANING U.S. WINDOW AND

CLEANING CO. CONTRACTORS, INC. HOUSE CLEANING CO. 1ST WASHING $1,922 $2,224 $2,408.40 2ND WASHING 1,922 942

631.80 3RD WASHING 1,370 2,224 2,408.40

TOTAL $5,214 $5,390 $5,448.60

CITY WINDOW CLEANING COMPANY FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENTS 2 AND 3.

IN YOUR LETTER OF SEPTEMBER 21 YOU CONTEND THAT THIS FAILURE IS CAUSE FOR REJECTION OF THE CITY WINDOW CLEANING LOW BID. ANOTHER CAUSE FOR REJECTION OF THE LOW BID, AS ASSERTED BY YOU, IS THAT CITY WINDOW CLEANING FAILED TO CONFORM TO THE SCHEDULE OF THE INVITATION FOR BIDS IN THAT ITS BID OF $1,922 FOR THE SECOND WASHING, WHICH COVERS ONLY 5 BUILDINGS, IS INCONSISTENT WITH ITS BID OF $1,370 FOR THE THIRD WASHING, WHICH COVERS 26 BUILDINGS. YOU FURTHER CONTEND THAT CITY WINDOW CLEANING WOULD BE GIVEN "A SUPERIOR ADVANTAGE IF THEY WERE ALLOWED TO BILL THE GOVERNMENT FOR THE FULL AMOUNT WITHOUT PERFORMING 100 PERCENT OF THE WORK.' THEREFORE, YOU REQUEST THAT THE LOW BID OF CITY WINDOW CLEANING BE REJECTED BECAUSE IT FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, AS REQUIRED BY 10 U.S.C. 2305 (C) AND ASPR 2-404.2 (A).

THE GENERAL RULE ON THE EFFECT OF FAILURE TO ACKNOWLEDGE AN ADDENDUM IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT CANNOT BE WAIVED. SEE 37 COMP. GEN. 785. THE RULE IS PREDICATED UPON THE PRINCIPLE THAT THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL ASPECT OF AN INVITATION, AS AMENDED, WOULD BE PREJUDICIAL TO THE OTHER BIDDERS. B-138392, FEBRUARY 25, 1959. IT IS ALSO SAID THAT THE FAILURE TO ACKNOWLEDGE GIVES THE FAILING BIDDER AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT MATERIAL ADDENDS HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. B 141299, DECEMBER 14, 1959.

WHILE THE GENERAL RULE IS BASED ON SOUND POLICY, THE RULE HAS NOT BEEN APPLIED INDISCRIMINATELY BY OUR OFFICE TO PREVENT WAIVER IN ALL CASES INVOLVING FAILURE TO ACKNOWLEDGE ADDENDA. IN THE INSTANT CASE AMENDMENT 2 MERELY CLARIFIED THE TIME OF BID OPENING AND CITY WINDOW CLEANING COMPANY SUBMITTED ITS BID BEFORE THE SPECIFIED BID OPENING TIME. AMENDMENT 3 SIMPLY PROVIDED FOR THE METHOD OF EVALUATION OF THE BIDS. HOWEVER, THE ORIGINAL INVITATION DID NOT PRECLUDE BIDDERS FROM BIDDING "ALL OR NONE.' THEREFORE, HAVING REGARD FOR THE FACT THAT THE AMENDMENTS DO NOT AFFECT PRICE, QUALITY OR QUANTITY IT SEEMS APPARENT THAT THE FAILURE OF CITY WINDOW CLEANING COMPANY TO ACKNOWLEDGE THE AMENDMENTS DID NOT RESULT IN GIVING IT A CHOICE AFTER BID OPENING TO EITHER ACCEPT OR DENY AN AWARD OF THE CONTRACT. IT IS ALSO CLEAR THAT NO PREJUDICE COULD RESULT TO THE OTHER BIDDERS BY ITS FAILURE TO ACKNOWLEDGE THE AMENDMENTS. CONSEQUENTLY, WE SEE NO OBJECTION TO WAIVING, AS AN INFORMALITY, THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE AMENDMENTS.

YOUR CONTENTION THAT THE MANNER IN WHICH CITY WINDOW CLEANING COMPANY QUOTED ITS PRICES REQUIRES REJECTION OF ITS BID IS, IN OUR OPINION, WITHOUT MERIT. WHILE IT IS TRUE THAT THE COMPANY REVERSED ITS QUOTED PRICES FOR THE SECOND AND THIRD WASHINGS, THE TOTAL BID PRICE WAS NOT IN ANY WAY AFFECTED BY SUCH REVERSAL. MOREOVER, SINCE BIDS WERE TO BE EVALUATED ON AN "ALL OR NONE" BASIS THE SEQUENCE IN WHICH THE PRICES FOR THE THREE WASHINGS WERE QUOTED IN THE SCHEDULE WOULD NOT AFFECT THE TOTAL AMOUNT OF THE BID. FURTHERMORE, WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT IF A CONTRACT IS AWARDED TO CITY WINDOW CLEANING COMPANY, PARTIAL PAYMENTS WILL BE MADE AND PAYMENT FOR THE SECOND WASHING COVERING FIVE BUILDINGS WILL BE MADE ON THE BASIS OF THE LOWER PRICE QUOTED FOR THE THIRD WASHING.

ACCORDINGLY, FOR THE REASONS STATED, WE FIND NO PROPER OR LEGAL BASIS FOR OBJECTING TO THE CONSIDERATION OF THE LOW BID OF CITY WINDOW CLEANING COMPANY FOR AWARD OF CONTRACT AND YOUR PROTEST IS DENIED.