B-161051, MAY 8, 1967

B-161051, MAY 8, 1967

TO CHARLES SIMKIN AND SONS, INCORPORATED:

REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED FEBRUARY 27, 1967, ADDRESSED TO HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY, POST PURCHASING AND CONTRACTING OFFICE, FORT DIX, NEW JERSEY, PROTESTING AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOURSELVES UNDER INVITATION FOR BIDS NO. DABB06-67-B-0026 FOR INSTALLATION AND RELOCATION OF HEAT DISTRIBUTION SYSTEM AT PLAINFIELD AND RAMSEY, NEW JERSEY.

THE INVITATION FOR BIDS WAS ISSUED BY THE CONTRACTING OFFICER, FORT DIX, NEW JERSEY, ON NOVEMBER 23, 1966, AND SCHEDULED FOR BID OPENING ON DECEMBER 17, 1966. THE SOLICITATION WAS FOR THE REHABILITATION OF HEAT DISTRIBUTION SYSTEMS IN VARIOUS AREAS OF TWO DIFFERENT AIR DEFENSE SITES AND CONSISTED OF A BASE BID AND FIVE ADDITIVE ITEMS THE BASE BID WAS FOR WORK KNOWN TO BE REQUIRED. PROVISION WAS MADE FOR BIDDERS TO FURNISH A PRICE FOR THIS ITEM AND EACH OF THE ADDITIVES SEPARATELY. ADDITIVE NUMBER ONE WAS FOR APPROXIMATELY 14 EXPLORATORY EXCAVATIONS TO DETERMINE THE CONDITION OF EXISTING UNDERGROUND SYSTEMS. ADDITIVES NUMBERS TWO THROUGH FIVE IDENTIFIED INDIVIDUAL AREAS OF THE TWO SITES AND PROVIDED FOR BIDDERS TO FURNISH A PRICE FOR EACH AREA IN THE EVENT EXPLORATORY EXCAVATIONS REVEALED SUFFICIENT DETERIORATION OF THE SYSTEMS TO WARRANT REPLACEMENT.

THE DESCRIPTION OF THE "BASE BID" ITEM ON PAGE 5 OF THE INVITATION FOR BIDS, IS AS FOLLOWS:

"ALL LABOR AND MATERIALS REQUIRED FOR INSTALLING HEAT DISTRIBUTION SYSTEM IN LAUNCHER AREA (AREA 3) AT SITE 93 AS SPECIFIED.'

AMENDMENT NUMBER ONE, AS ISSUED ON DECEMBER 5, 1966, PROVIDED AS FOLLOWS:

"1. INASMUCH AS IT HAS BEEN DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO MODIFY THE ABOVE-CITED INVITATION FOR BIDS, THE FOLLOWING CHANGES SHALL APPLY:

A. TO THE UNIT PRICE SCHEDULE, PAGE NO. 5, IN THE PARAGRAPH TITLED "BASE BID" ADD THE FOLLOWING TO THE END OF THE PARAGRAPH: "AND IN LAUNCHER AREA (AREA 3) AT SITE 65 AS SPECIFIED.'

"2. THIS AMENDMENT SHALL BE ATTACHED TO AND WILL FORM A PART OF THE CONTRACT WHEN EXECUTED.

"3. IT IS MANDATORY THAT ALL BIDDERS ACKNOWLEDGE RECEIPT OF THIS AMENDMENT BY INSERTING THE NUMBER AND ISSUE DATE THEREOF IN THE SPACE PROVIDED NEAR THE TOP OF PAGE 2 (REVERSE) OF THE BID FORM(STANDARD FORM 21).

"4. THIS AMENDMENT AFFECTS THE PRICING. FAILURE OF THE BIDDER TO ACKNOWLEDGE THIS AMENDMENT IN SUCH MANNER AS IS SET FORTH IN PARAGRAPH 3, ABOVE, WILL CAUSE THE BID TO BE REJECTED AS NONRESPONSIVE TO THE INVITATION.'

AMENDMENT NUMBER TWO, ISSUED ON DECEMBER 20, 1966, EXTENDED THE BID OPENING DATE TO A TIME WHICH WOULD BE LATER ANNOUNCED, WHEN CURRENT WAGE RATES WERE RECEIVED FROM THE DEPARTMENT OF LABOR TO REPLACE THE RATES SET FORTH IN THE ORIGINAL INVITATION FOR BIDS.

AMENDMENT NUMBER THREE, ISSUED ON JANUARY 16, 1967, CITED CURRENT WAGE RATES, ESTABLISHED THE BID OPENING DATE AS JANUARY 26, 1967, AND INCLUDED SOME MINOR CHANGES TO THE TECHNICAL PROVISIONS OF THE SOLICITATION. ALL OF THE AMENDMENTS REQUIRED THAT THE BIDDERS ACKNOWLEDGE RECEIPT BY NOTATION ON THEIR BID FORMS AND ADVISED THAT FAILURE TO DO SO WOULD CAUSE THE BID TO BE REJECTED.

IT IS REPORTED, AND THE RECORD SHOWS, THAT NINE BIDS WERE OPENED AND RECORDED ON JANUARY 26, 1967. THE PRICES RANGED FROM $32,925 TO $77,331. THE GOVERNMENT ESTIMATE WAS $36,150. ALL OF THE BIDDERS ACKNOWLEDGED RECEIPT OF THE THREE AMENDMENTS EXCEPT CHARLES SIMKIN AND SONS, INCORPORATED, WHICH ACKNOWLEDGED RECEIPT OF AMENDMENT NUMBER THREE ONLY. DETAILED EVALUATION OF THE PRICE FURNISHED BY YOUR CONCERN SHOWS THAT YOU QUOTED $4,875 FOR THE BASE BID. THE OTHER PRICES FOR THE BASE BID RANGED FROM $11,140 TO $26,105. THE GOVERNMENT ESTIMATE WAS $11,445.

AWARD WAS MADE TO AMERICAN PUMP AND TANK INSTALLATION COMPANY OF LAWRENCE, NEW YORK, ON FEBRUARY 13, 1967, FOR THE BASE BID AND ALL OF THE ADDITIVE ITEMS FOR A TOTAL PRICE OF $35,010. THE CONTRACT IS FIRM ONLY FOR THE BASE BID OF $11,140 PLUS $45 FOR EACH OF THE APPROXIMATELY FOURTEEN EXPLORATORY EXCAVATIONS COVERED BY ADDITIVE ITEM NUMBER ONE. ACCORDANCE WITH NOTE 3 TO UNIT PRICE SCHEDULE OF THE INVITATION FOR BIDS, PERFORMANCE OF THE WORK SET FORTH IN ADDITIVE ITEMS NUMBERS TWO THROUGH FIVE IS CONTINGENT UPON THE RESULTS OF THE EXPLORATORY EXCAVATIONS AND COULD RESULT IN CANCELLATION OF ANY OR ALL OF THESE ADDITIVE ITEMS IF IT IS FOUND THAT THE WORK IS NOT REQUIRED.

IT IS YOUR CONTENTION THAT YOUR FIRM IS THE LOWEST RESPONSIBLE BIDDER, AND AS SUCH, IT IS THE OBLIGATION OF THE GOVERNMENT TO AWARD THE CONTRACT TO YOUR FIRM.

THE DECISIONS OF THIS OFFICE ESTABLISHED THE RULE THAT A FAILURE TO ACKNOWLEDGE AMENDMENTS THAT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE WORK IS A MATERIAL DEVIATION RENDERING THE BID SUBMITTED NONRESPONSIVE. -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 PRECLUDED 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.'

THE SAME RATIONALE WAS EMPLOYED IN B-128645, SEPTEMBER 28, 1956, AND B- 140412 OF SEPTEMBER 30, 1959, BOTH DEALING WITH BIDS THAT FAILED TO ACKNOWLEDGE AMENDMENTS CONTAINING MATERIAL CHANGES IN THE INVITATION FOR BIDS. SEE ALSO B-151188, MAY 8, 1963.

THERE IS NO DOUBT THAT AMENDMENT NUMBER ONE AFFECTS THE PRICE AND QUANTITY OF THE WORK SOUGHT BY THE INVITATION.

IN VIEW OF THE FOREGOING, WE SEE NO PROPER BASIS FOR OFFICE TO OBJECT TO THE REJECTION OF THE BID SUBMITTED BY YOUR COMPANY.