B-161210, JUN. 14, 1967

B-161210: Jun 14, 1967

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TO SILVERSTEIN AND REMICK: REFERENCE IS MADE TO YOUR LETTER OF APRIL 3. LAKEN LECTRONICS (LAKEN) WAS LOW BIDDER AT $ .741 PER UNIT. WHILE ELECTRO-SPACE CORPORATION (ELECTROSPACE) WAS THE NEXT LOW BIDDER AT $ .79 PER UNIT. IT IS REPORTED THAT SUBSEQUENT TO THE ISSUANCE OF THE INVITATION IT WAS DETERMINED THAT THE PREPARATION FOR DELIVERY REQUIREMENTS. WERE INCOMPLETE. SINCE THE ITEM COVERED BY THE INVITATION IS ONLY 5/8 INCHES IN DIAMETER. AMENDMENT NO. 1 WAS ISSUED ON JANUARY 9. TO PG.'" LAKEN WAS THE ONLY FIRM WHO DID NOT RETURN THE AMENDMENT PRIOR TO BID OPENING. WHILE BIDS WERE OPENED ON JANUARY 25. IT WAS NOT UNTIL FEBRUARY 27 THAT LAKEN RETURNED THE AMENDMENT. LAKEN'S BID WAS REJECTED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-301 (A) FOR FAILURE TO COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION.

B-161210, JUN. 14, 1967

TO SILVERSTEIN AND REMICK:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1967, PROTESTING ON BEHALF OF LAKEN LECTRONICS AGAINST THE REJECTION OF THAT FIRM'S LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS DSA-400-67-B-4852, ISSUED ON JANUARY 3, 1967, BY THE DEFENSE SUPPLY AGENCY.

THE SUBJECT INVITATION SOLICITED BIDS FOR A QUANTITY OF 5500 "FSN 5940- 272-1477 POST, BINDING: P/N SC-C-136011-GROUP 1 IN ACCORDANCE WITH SIGNAL CORPS DWG SC-C-136011, REV. G DATED 8 FEB 64.' SIX FIRMS SUBMITTED BIDS IN RESPONSE TO THE INVITATION. LAKEN LECTRONICS (LAKEN) WAS LOW BIDDER AT $ .741 PER UNIT, WHILE ELECTRO-SPACE CORPORATION (ELECTROSPACE) WAS THE NEXT LOW BIDDER AT $ .79 PER UNIT.

IT IS REPORTED THAT SUBSEQUENT TO THE ISSUANCE OF THE INVITATION IT WAS DETERMINED THAT THE PREPARATION FOR DELIVERY REQUIREMENTS, SET FORTH ON PAGE 7 OF THE SCHEDULE, WERE INCOMPLETE, SINCE THE ITEM COVERED BY THE INVITATION IS ONLY 5/8 INCHES IN DIAMETER, 1 15/32 INCHES LONG, AND WEIGHS ONLY ONE OUNCE AND UNDER THE PACKING SPECIFICATIONS CITED ON PAGE 7 OF THE INVITATION, EACH PACKING BOX (MAXIMUM SIZE, L PLUS W PLUS D EQUALS 120 INCHES) AND CONTENTS MAY WEIGH UP TO 160 POUNDS. WITH NO QUANTITY PER PACKAGE SPECIFIED, THE QUANTITY PER PACKAGE WOULD BE LIMITED ONLY BY THIS 160-POUND WEIGHT LIMITATION, AND THE CONTRACTOR WOULD BE FREE TO PUT AS MANY ITEMS AS HE DESIRED IN EACH PACKAGE. TO PROVIDE FOR INDIVIDUAL PACKAGING, AMENDMENT NO. 1 WAS ISSUED ON JANUARY 9, 1967, WHICH QUOTED IN ITS ENTIRETY, READS,"ON PAGE 5 ADD "PACKED 1 EA. TO PG.'" LAKEN WAS THE ONLY FIRM WHO DID NOT RETURN THE AMENDMENT PRIOR TO BID OPENING, ALTHOUGH, ON THE FACE OF THE AMENDMENT IT STATED THAT FAILURE TO RETURN THE AMENDMENT PRIOR TO TIME OF BID OPENING WOULD RENDER THE BID NONRESPONSIVE. WHILE BIDS WERE OPENED ON JANUARY 25, 1967, IT WAS NOT UNTIL FEBRUARY 27 THAT LAKEN RETURNED THE AMENDMENT. LAKEN'S BID WAS REJECTED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-301 (A) FOR FAILURE TO COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION. AWARD WAS MADE TO ELECTRO-SPACE, THE NEXT LOW BIDDER, ON MARCH 21, 1967.

IT IS YOUR CONTENTION THAT THE AMENDMENT DID NOT AFFECT PRICE, QUANTITY, QUALITY, OR DELIVERY AND, IN FACT, LAKEN HAD ASSUMED AS IS NORMAL WHEN QUANTITIES ARE QUOTED WITH A UNIT DESIGNATION OF EACH, THAT THEY WERE TO BE INDIVIDUALLY PACKAGED SO THAT LAKEN'S TOTAL BID PRICE ALREADY WAS BASED ON THE AMENDMENT. THIS BEING THE CASE, IT IS YOUR POSITION THAT UNDER THE GUIDELINES AS ESTABLISHED IN ASPR 2-405, LAKEN'S FAILURE TO RETURN THE AMENDMENT COULD BE WAIVED AS A MINOR INFORMALITY.

THE GENERAL RULE IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS PRICE, QUANTITY OR QUALITY OF THE ITEM BEING PROCURED, FAILURE OF THE BIDDER TO ACKNOWLEDGE THE AMENDMENT IN THE MANNER REQUIRED CANNOT BE WAIVED. COMP. GEN. 490; 37 COMP. GEN. 785; B-157779, DECEMBER 15, 1965; B-156157, MARCH 29, 1965. WHILE THE BASIS FOR THE GENERAL RULE IS THE PRINCIPLE THAT ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION WOULD BE PREJUDICIAL TO OTHER BIDDERS, THE RULE HAS NOT BEEN APPLIED INDISCRIMINATELY SO AS TO PRECLUDE WAIVER IN ALL CASES INVOLVING FAILURE TO ACKNOWLEDGE AN AMENDMENT TO THE INVITATION. WAIVER HAS BEEN PERMITTED WHERE THE MODIFICATION COULD HAVE AFFECTED THE COST OF WORK ONLY TO A NEGLIGIBLE DEGREE, 34 COMP. GEN. 581; WHERE THE ADDITIONAL COST WAS CONSIDERED NEGLIGIBLE, B 144185, JANUARY 25, 1961; B-158618, MAY 17, 1966; AND WHERE THE EFFECT OF THE AMENDMENT WAS TO REDUCE THE CONTRACT PRICE, 41 COMP. GEN. 550; B-156651, JUNE 21, 1965. NEVERTHELESS, IN DETERMINING WHETHER A SPECIFICATION REQUIREMENT IS MATERIAL WE HAVE HELD THAT WHILE THE AMOUNT IN QUESTION MIGHT BE CONSIDERED TRIVIAL IN ITSELF, IF IN FACT IT WAS A FAIRLY SUBSTANTIAL PART OF THE TOTAL COST, OR MORE THAN AN INSIGNIFICANT PART OF THE DIFFERENCE BETWEEN THE DEFECTIVE BID AND THE NEXT AVAILABLE BID, IT COULD NOT PROPERLY BE CONSIDERED AS JUSTIFYING A WAIVER OF THE DEFECT. 44 COMP. GEN. 753.

ACCORDING TO THE ADMINISTRATIVE REPORT THE INDIVIDUAL PACKAGING COST ADDED BY THE AMENDMENT WAS ESTIMATED AT $143.00 BY A RICHMOND, VIRGINIA, PACKAGING FIRM AND $192.50 BY THE U.S. ARMY ELECTRONICS COMMAND, PHILADELPHIA OFFICE, WHICH HAS A CURRENT PACKAGING CONTRACT WITH A PHILADELPHIA PACKAGING FIRM. FURTHER, SINCE THE DIFFERENCE BETWEEN THE EVALUATED BID OF ELECTROSPACE ($4,301.55) AND LAKEN ($4,055.12) IS ONLY $246.43, IT WOULD APPEAR THAT THE COST ADDED BY THE AMENDMENT MUST BE CONSIDERED A SIGNIFICANT PART OF THE DIFFERENCE BETWEEN LAKEN'S BID AND THAT OF ELECTROSPACE, AND THEREFORE CANNOT BE WAIVED AS A MINOR INFORMALITY.

WITH RESPECT TO YOUR CONTENTION THAT LAKEN HAD INTENDED TO PACKAGE THE ITEMS INDIVIDUALLY AND ITS BID PRICE THEREFORE WAS BASED ON THE SAME REQUIREMENT SUBSEQUENTLY IMPOSED BY THE AMENDMENT, THERE IS NOTHING IN THE BID ITSELF TO INDICATE THAT THE BID PRICE WAS BASED ON INDIVIDUAL PACKAGING OF THE ITEMS, AND IN THE ABSENCE OF SUCH INDICATION ANY INFORMATION OR EVIDENCE SUBMITTED BY LAKEN AFTER BID OPENING MAY NOT BE CONSIDERED IN CONSTRUING ITS BID. 43 COMP. GEN. 817. TO PERMIT SUCH CLARIFICATION WOULD GIVE LAKEN AN OPTION, AFTER BID OPENING, OF BECOMING ELIGIBLE FOR AWARD, OR OF REMAINING SILENT AND HAVING ITS BID REJECTED. -141299, DECEMBER 14, 1959.

CONCERNING YOUR CLAIM FOR BID PREPARATION EXPENSES, THE GENERAL RULE IS THAT THERE IS NO LEGAL BASIS TO SUPPORT A CLAIM FOR SUCH EXPENSES BY AN UNSUCCESSFUL BIDDER.

IN VIEW OF THE FOREGOING LAKEN'S PROTEST, AND ITS CLAIM TO RECOVER COSTS OF BIDDING, MUST BE DENIED.