B-161832, AUG. 17, 1967

B-161832: Aug 17, 1967

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ADDED REPORTING REQUIREMENT AND ELIMINATED THE PAINTING OF A SMALL AREA MAY HAVE SUCH FAILURE REGARDED AS A MINOR INFORMALITY SO THAT WAIVER WAS PROPER SINCE THE $300 COST REDUCTION IN RELATION TO TOTAL $867. 000 IS NEGLIGIBLE AND SINCE LOW BIDDER'S PRICE DID NOT REFLECT LESSENED REQUIREMENTS FAILURE TO ACKNOWLEDGE WOULD NOT BE PREJUDICIAL TO OTHER BIDDER. THE INVITATION WAS ISSUED ON MAY 10. IT FAILED TO ACKNOWLEDGE THE AMENDMENT BY THE TIME BIDS WERE RECEIVED AND OPENED. A. GUY WAS A NONRESPONSIVE BIDDER SINCE IT FAILED TO ACKNOWLEDGE THE RECEIPT OF THE AMENDMENT WHICH AFFECTED THE PRICE. THERE WAS INVOLVED IN THAT CASE AN AMENDMENT AFFECTING THE CONTRACT WAGE RATES AND WE HELD THAT YOUR FAILURE TO ACKNOWLEDGE SUCH AN AMENDMENT CAME WITHIN THE GENERAL RULE STATED ABOVE.

B-161832, AUG. 17, 1967

BIDS - AMENDMENT - ETC. ACKNOWLEDGMENT DECISION TO TIMMONS, BUTT, AND HEAD, INC., AGAINST AWARD BY U.S. ARMY CORPS OF ENGINEERS TO J.A. GUY, INC. UNDER INVITATION FOR ALTERATIONS TO BUILDINGS AT WRIGHT-PATTERSON AIR FORCE BASE. LOW BIDDER FOR BUILDING ALTERATION WORK WHO DID NOT ACKNOWLEDGE AMENDMENT WHICH CLARIFIED REQUIREMENTS IN ADVERTISED SPECIFICATIONS, ADDED REPORTING REQUIREMENT AND ELIMINATED THE PAINTING OF A SMALL AREA MAY HAVE SUCH FAILURE REGARDED AS A MINOR INFORMALITY SO THAT WAIVER WAS PROPER SINCE THE $300 COST REDUCTION IN RELATION TO TOTAL $867,000 IS NEGLIGIBLE AND SINCE LOW BIDDER'S PRICE DID NOT REFLECT LESSENED REQUIREMENTS FAILURE TO ACKNOWLEDGE WOULD NOT BE PREJUDICIAL TO OTHER BIDDER. THEREFORE PROTEST AGAINST AWARD TO LOW BIDDER MUST BE DENIED.

TO MR. WILLIAM T. BUTT, PRESIDENT:

YOUR LETTER OF JUNE 15, 1967, ADDRESSED TO THE U.S. ARMY CORPS OF ENGINEERS, PROTESTS AGAINST THE AWARD OF A CONTRACT TO THE LOW BIDDER, J.A. GUY, INC., UNDER INVITATION FOR BIDS NO. DACA27-67-B-0006, ON THE BASIS THAT THE LOW BIDDER FAILED TO PROPERLY ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 0001 TO THE INVITATION.

THE INVITATION WAS ISSUED ON MAY 10, 1967, COVERING RECREATION, LIBRARY/CONVERSION, ALTERATIONS TO BUILDING NO. 1189, LOGISTIC FACILITY DEPOT (CONV.), ALTERATIONS, BUILDING NO. 1, AT WRIGHT PATTERSON AIR FORCE BASE, OHIO. ON MAY 23, 1967, THE ARMY ENGINEERS ISSUED AMENDMENT NO. 0001 WHICH REVISED SPECIAL PROVISION 36 OF THE SPECIFICATIONS ENTITLED,"CONTRACTOR INSPECTION SYSTEM," AND DELETED CERTAIN PAINTING REQUIREMENTS OF THE TECHNICAL PROVISIONS. AT THE OPENING OF BIDS, IT APPEARED THAT J.A. GUY BID $867,000 AND YOU BID $927,615 FOR THE WORK ADVERTISED. ALTHOUGH J. A. GUY APPEARED TO BE LOW BIDDER BY $60,615, IT FAILED TO ACKNOWLEDGE THE AMENDMENT BY THE TIME BIDS WERE RECEIVED AND OPENED.

YOU CONTEND THAT J. A. GUY WAS A NONRESPONSIVE BIDDER SINCE IT FAILED TO ACKNOWLEDGE THE RECEIPT OF THE AMENDMENT WHICH AFFECTED THE PRICE, QUALITY AND QUANTITY OF THE INVITATION. YOU THEREFORE CONTEND THAT SUCH BID SHOULD BE REJECTED AND AWARD MADE TO YOU AS THE LOWEST RESPONSIVE BIDDER. IN SUPPORT THEREOF, YOU REFER TO OUR DECISION TO YOU, OF NOVEMBER 9, 1965, B-157832. IN THAT DECISION, WE STATED THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE AND CANNOT BE WAIVED. THERE WAS INVOLVED IN THAT CASE AN AMENDMENT AFFECTING THE CONTRACT WAGE RATES AND WE HELD THAT YOUR FAILURE TO ACKNOWLEDGE SUCH AN AMENDMENT CAME WITHIN THE GENERAL RULE STATED ABOVE. SEE, ALSO, 37 COMP. GEN. 785.

YOU CONTEND THAT THE REVISED PARAGRAPH SP-36-C REQUIRES THE CONTRACTOR TO FURNISH DETAILED WRITTEN PRELIMINARY AND FINAL QUALITY CONTROL PALNS FOR APPROVAL BY THE CONTRACTING OFFICER; THAT REVISED PARAGRAPH SP-36-D REQUIRES A DAILY INSPECTION REPORT; AND THAT REVISED PARAGRAPH SP-36-E REQUIRES APPROVAL OF A SPECIFIC INSPECTION PLAN PRIOR TO THE START OF CONSTRUCTION. YOU ALLEGE THAT SUCH PRIOR APPROVAL WILL REQUIRE RIGID INSPECTION PROCEDURES AND, HENCE, IT WILL RESULT IN HIGHER COSTS. LASTLY, YOU CONTEND THAT WHILE THE AMENDMENT DELETES THE PAINTING OF A SMALL AREA OF EXISTING SURFACES, NEW SURFACES WITHIN THAT SAME AREA REMAIN TO BE PAINTED, AND THAT LITTLE OR NO LABOR SAVINGS COULD BE REALIZED BECAUSE OF THE PATCHED EFFECT OF THE WORK.

WE HAVE BEEN INFORMED BY THE PROCUREMENT OFFICE THAT AMENDMENT 0001 REVISED PARAGRAPH SP-36 SO AS TO CLARIFY REQUIREMENTS ALREADY INCLUDED IN THE ADVERTISED SPECIFICATIONS. THE AMENDMENT, WE ARE ADVISED, DID NOT CHANGE THE AMOUNT OR QUALITY OF INSPECTION OR TESTING WHICH IS GOVERNED TO A SUBSTANTIAL DEGREE BY THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS. AND WHILE IT IS REPORTED THAT THE REPORTING REQUIREMENTS MAY BE INCREASED TO SOME UNMEASURABLE DEGREE, NO CHANGE IN COSTS COULD RESULT FROM THIS POSSIBLE INCREASE IN REPORTING. ALSO, IT IS ESTIMATED BY TECHNICAL PERSONNEL THAT THERE WILL BE A A $330 SAVING IN COST DUE TO THE PAINTING DELETION PROVIDED IN THE AMENDMENT. THEREFORE, IT APPEARS THAT THE MODIFICATIONS REQUIRED BY THE AMENDMENT HAD BUT A NEGLIGIBLE AFFECT ON THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT.

WHILE THE GENERAL RULE SET FORTH IN B-157832, NOVEMBER 9, 1965, AND 37 COMP. GEN. 785 IS BASED ON SOUND POLICY AND FURTHERS THE SPIRIT AND PURPOSE OF THE LAW GOVERNING FORMAL COMPETITIVE PROCUREMENT, WE DO NOT BELIEVE THAT SUCH RULE HAS APPLICATION TO THE PRESENT CASE. THE GENERAL RULE HAS NOT BEEN APPLIED INDISCRIMINATELY BY OUR OFFICE TO PREVENT WAIVER IN ALL CASES INVOLVING FAILURES TO ACKNOWLEDGE ADDENDA. THUS, WAIVER HAS BEEN PERMITTED WHERE THE MODIFICATION COULD HAVE AFFECTED THE COST OF THE WORK ONLY TO A NEGLIGIBLE DEGREE (34 COMP. GEN. 581); OR WHERE THE ADDITIONAL COST WAS TOO TRIVIAL AS A PRACTICAL MATTER WHEN COMPARED WITH THE TOTAL COST OF THE WORK(B 141383, JANUARY 14, 1960). IN B-144185, JANUARY 25, 1961, WHERE THE AMENDMENT ADDED A REQUIREMENT FOR SUBMISSION OF REPORTS OF STATUS OF PERFORMANCE, THE CONTRACTING OFFICER REPORTED THAT THE FURNISHING OF SUCH REPORTS WOULD CONSIST MERELY OF SUBMITTING FIGURES OR INFORMATION WHICH THE CONTRACTOR WOULD HAVE IN ANY EVENT AND WOULD INVOLVE NO MATERIAL AMOUNT OF COSTS. IN B-144784, JUNE 21, 1961, WE HELD THE FACTS DID NOT JUSTIFY A CONCLUSION "THAT THE ADDENDA PROVISIONS WERE OF A SUBSTANTIAL NATURE WITH REGARD TO THE OVERALL COST OF THE WORK OR THAT THE FAILURE OF THE LOW BIDDER TO EXECUTE THE ADDENDUM PREJUDICED OTHER BIDDERS.' SEE 41 COMP. GEN. 550; AND PARTICULARLY 44 COMP. GEN. 753.

WITH RESPECT TO THE TOTAL COST OF THE PROCUREMENT ($867,000), IT CANNOT BE CONCLUDED THAT A $300 COST REDUCTION IS MORE THAN NEGLIGIBLE OR TRIVIAL. 41 COMP. GEN. 550. UNDER THESE CIRCUMSTANCES, IT IS CLEAR THAT NO PREJUDICE COULD RESULT TO THE OTHER BIDDERS BY THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE ADDENDUM. INDEED, IF WE ASSUME THAT THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE ADDENDUM WAS DUE TO IGNORANCE OF ITS EXISTENCE, THEN ITS BID PRICE WOULD NOT REFLECT THE LESSENED REQUIREMENTS OF THE SPECIFICATIONS AND, THEREFORE, ITS FAILURE TO ACKNOWLEDGE WOULD ONLY BE PREJUDICIAL TO ITS COMPETITIVE POSITION AND EVEN POSSIBLY BENEFICIAL TO THE POSITION OF THE OTHER BIDDERS.

FOR THE REASONS STATED, WE FIND NO BASIS FOR OBJECTING TO WAIVING, AS AN INFORMALITY, THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE AMENDMENT NO. 0001.

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