B-163885, APRIL 24, 1968, 47 COMP. GEN. 597

B-163885: Apr 24, 1968

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WHERE THE LOW BIDDER ALLEGES THE FAILURE WAS INADVERTENT AND THE AMENDMENTS HAD BEEN CONSIDERED IN BID PREPARATION. 1968: REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. FIVE AMENDMENTS TO THE INVITATION WERE ISSUED. FOUR BIDS WERE RECEIVED AS FOLLOWS: BIDDER TOTAL BLAKE CONSTRUCTION CO. 550 THE GOVERNMENT ESTIMATE FOR THE WORK WAS $5. BLAKE ADVISED BY TELEGRAM THAT THE AMENDMENTS HAD BEEN TAKEN INTO CONSIDERATION IN THE PREPARATION OF THE BID AND THAT THE ACKNOWLEDGEMENT WAS INADVERTENTLY OMITTED. IN VIEW OF THE MATERIAL EFFECT THE AMENDMENTS WOULD HAVE UPON THE COST OF PERFORMANCE. YOU HAVE POINTED OUT THAT THE LOW BID IS $259. 940 LESS THAN THE NEXT LOW BID AND YOU CONTEND THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENTS WAS INADVERTENT AND SHOULD BE WAIVED AS AN INFORMALITY.

B-163885, APRIL 24, 1968, 47 COMP. GEN. 597

CONTRACTS - SPECIFICATIONS - DEVIATIONS - INFORMAL V. SUBSTANTIVE - FAILURE TO BID ON ADDENDUM FAILURE TO ACKNOWLEDGE AMENDMENTS TO AN INVITATION FOR BUILDING CONSTRUCTION THAT AFFECT BOTH PRICE AND WORK QUANTITY, WHERE THE LOW BIDDER ALLEGES THE FAILURE WAS INADVERTENT AND THE AMENDMENTS HAD BEEN CONSIDERED IN BID PREPARATION, MAY NOT BE WAIVED ON AN INFORMALITY WITHIN THE PURVIEW OF PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND THE AMENDMENTS PROVIDING FOR SUBSTANTIAL INCREASE IN THE WORK TO BE PERFORMED, THE CONFLICTING CONTENTIONS AS TO PRICE NEED NOT BE RESOLVED. THE FACT THAT THE BIDDER'S REPRESENTATIVE REMAINED SILENT TO THE QUERY BEFORE BID OPENING CONCERNING RECEIPT OF THE AMENDMENTS DOES NOT AFFECT THE BID DEVIATION, THE SILENCE NOT HAVING THE EVIDENTIARY ATTRIBUTE OF A POSITIVE ORAL AFFIRMATION, NOR MAY STATEMENTS MADE AFTER BID OPENING BE CONSIDERED, AS BID RESPONSIVENESS MUST BE ESTABLISHED AS OF BID OPENING TIME.

TO THE BLAKE CONSTRUCTION CO., INC., APRIL 24, 1968:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1968, PROTESTING THE REJECTION OF THE LOW BID SUBMITTED BY BLAKE CONSTRUCTION CO., INC., UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS DACA31-68-B-0019 BECAUSE OF ITS FAILURE TO ACKNOWLEDGE IN THE BID THE RECEIPT OF AMENDMENTS OF THE INVITATION.

THE INVITATION FOR BIDS SOLICITED A LUMP-SUM PRICE FOR THE CONSTRUCTION OF AN ADDITION TO THE ARMED FORCES INSTITUTE OF PATHOLOGY, WALTER REED ARMY MEDICAL CENTER. SUBSEQUENT TO THE ISSUANCE OF THE INVITATION, FIVE AMENDMENTS TO THE INVITATION WERE ISSUED. TWO OF THE AMENDMENTS, NUMBERS 1 AND 4, EXTENDED THE BID OPENING DATE. THE OTHER THREE AMENDMENTS, NUMBERS 2, 3 AND 5, PROVIDED SPECIFICATION CHANGES.

FOUR BIDS WERE RECEIVED AS FOLLOWS:

BIDDER TOTAL BLAKE CONSTRUCTION CO., INC.

$4,988,000 BALTIMORE CONTRACTORS, INC. 5,247,940 J. W. BATESON COMPANY, INC. 5,279,000 NORAIR ENGINEERING CORP. 5,525,550 THE GOVERNMENT ESTIMATE FOR THE WORK WAS $5,597,074.

THE BLAKE BID DID NOT ACKNOWLEDGE RECEIPT OF ANY OF THE AMENDMENTS. AFTER BID OPENING, BLAKE ADVISED BY TELEGRAM THAT THE AMENDMENTS HAD BEEN TAKEN INTO CONSIDERATION IN THE PREPARATION OF THE BID AND THAT THE ACKNOWLEDGEMENT WAS INADVERTENTLY OMITTED. THE CONTRACTING OFFICE ESTIMATED THAT THE REVISIONS OF THE SPECIFICATIONS IN THE AMENDMENTS WOULD INCREASE THE COST OF CONSTRUCTION BY BETWEEN $35,000 TO $60,000. IN VIEW OF THE MATERIAL EFFECT THE AMENDMENTS WOULD HAVE UPON THE COST OF PERFORMANCE, THE CONTRACTING OFFICER DETERMINED THAT THE LOW BID SHOULD BE REJECTED AS NONRESPONSIVE BECAUSE OF THE FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENTS.

YOU HAVE POINTED OUT THAT THE LOW BID IS $259,940 LESS THAN THE NEXT LOW BID AND YOU CONTEND THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENTS WAS INADVERTENT AND SHOULD BE WAIVED AS AN INFORMALITY. IN THAT REGARD, YOU POINT OUT THAT THE BLAKE BID WAS HAND-DELIVERED BY AN OFFICER OF THE COMPANY, AN ASSISTANT SECRETARY, AT THE TIME FOR BID OPENING PROVIDED FOR IN AMENDMENT 0004 WHICH ALSO STATED THAT AMENDMENT 0005 WAS FOLLOWING. IS STATED THAT THE ASSISTANT SECRETARY ATTENDS VIRTUALLY ALL OF THE BID OPENINGS AS A REPRESENTATIVE OF THE COMPANY PRESIDENT WHO SIGNED THE BID. THE ASSISTANT SECRETARY IS SAID TO HAVE BEEN ACCOMPANIED BY A BLAKE EMPLOYEE WHO WORKED ON THE ESTIMATING TEAM. BOTH MEN ARE SAID TO HAVE HAD PERSONAL KNOWLEDGE THAT THE AMENDMENTS WERE RECEIVED AND CONSIDERED IN THE PREPARATION OF THE BID. IN A STATEMENT ACCOMPANYING THE APRIL 8 LETTER, THE ASSISTANT SECRETARY STATES THAT PRIOR TO THE OPENING OF BIDS THE CONTRACTING OFFICER QUERIED:

ARE ALL BIDS IN? THERE WERE FIVE AMENDMENTS TO THIS INVITATION. IS THERE ANYONE WHO DID NOT RECEIVE ALL FIVE AMENDMENTS?

THE ASSISTANT SECRETARY STATES THAT HE REMAINED SILENT BECAUSE HE KNEW THAT ALL FIVE AMENDMENTS HAD BEEN RECEIVED AND CONSIDERED IN THE BID. STATES FURTHER THAT AFTER THE BID OPENING THE CONTRACTING OFFICER TOLD HIM THAT THE BID FORM DID NOT CONTAIN A WRITTEN ACKNOWLEDGMENT OF THE AMENDMENTS AND ASKED WHETHER BLAKE RECEIVED THE AMENDMENTS. HE STATES THAT HE REPLIED: "I AM SURE WE DID, BUT IF YOU WANT ME TO I WILL CALL OUR OFFICE AND CHECK.' THE CONTRACTING OFFICER IS QUOTED AS SAYING: "IT IS TOO LATE FOR THAT NOW.' A SEPARATE STATEMENT FROM THE BLAKE EMPLOYEE WHO ATTENDED THE BID OPENING WITH THE ASSISTANT SECRETARY CORROBORATES THE ASSISTANT SECRETARY'S STATEMENT.

YOU CONTEND THAT THE CONTRACTING OFFICER'S QUESTION, QUOTED ABOVE, REQUIRED AN ANSWER ONLY IF THE REPLY WAS AN AFFIRMATIVE DENIAL OF THE RECEIPT OF THE AMENDMENTS. YOU CITE 31A C.J.S., EVIDENCE, SECTION 294 FOR THE PROPOSITION THAT IF A PERSON REMAINS SILENT WHEN SILENCE IS NOT PROPER OR NATURAL, EVIDENCE OF SUCH SILENCE IS ADMISSIBLE AS EVIDENCEING AN ADMISSION. YOU STATE, THEREFORE, THAT THE SILENCE COUPLED WITH THE QUESTIONS WAS AN INDICATION PRIOR TO BID OPENING THAT THE AMENDMENTS HAD BEEN RECEIVED AND THAT THE FAILURE TO ACKNOWLEDGE THE RECEIPT IN THE BID WAS ONLY A MATTER OF FORM WHICH SHOULD BE WAIVED UNDER THESE CIRCUMSTANCES.

WE ARE ADVISED BY THE PROCUREMENT ACTIVITY THAT THE CONTRACTING OFFICER DID NOT CONSIDER THE SILENCE TO BE AN ACKNOWLEDGMENT BECAUSE, WHEN QUERIED ON THE OMISSION OF ACKNOWLEDGMENT IN THE BID, THE BLAKE PERSONNEL WHO ATTENDED THE BID OPENING INDICATED THAT IN ORDER TO ANSWER THE QUESTION THEIR OFFICE WOULD HAVE TO BE CALLED. THIS WAS TAKEN AS AN INDICATION THAT THEY WERE UNAWARE OF THE EXACT SITUATION WITH RESPECT TO THE AMENDMENTS AND THAT THEIR SILENCE WAS NOT MEANINGFUL. HOWEVER, THE ASSISTANT SECRETARY AND THE ESTIMATOR BOTH STATE THAT THEY KNEW THAT THE AMENDMENTS HAD BEEN RECEIVED AND THAT THE ASSISTANT SECRETARY SAID TO THE CONTRACTING OFFICER AFTER BID OPENING THAT HE WAS SURE THE AMENDMENTS HAD BEEN RECEIVED BUT THAT IF THE CONTRACTING OFFICER WISHED TO HAVE SUCH INFORMATION HE WOULD TELEPHONE THE OFFICE.

WHILE THE SUBMISSION OF A BID ON THE DATE SPECIFIED IN THE FOURTH AMENDMENT OF THE INVITATION MIGHT BE CONSTRUED AS AN INDICATION THAT THE FOURTH AMENDMENT WAS RECEIVED, IT INDICATES NOTHING MORE THAN THAT, AND IT CANNOT BE INFERRED THEREFROM THAT THE BIDDER MUST HAVE RECEIVED ALL PRIOR AMENDMENTS AND THE SUBSEQUENT AMENDMENT AS WELL. SEE B-140412, SEPTEMBER 30, 1959. IT MAY BE TOO THAT IN GIVEN SITUATIONS SILENCE CAN BE EVIDENCE OF ASSENT, BUT 31A C.J.S., EVIDENCE, SECTION 294 ALSO STATES THAT EVIDENCE OF SILENCE WHEN SILENCE IS NATURAL AND PROPER IS NOT ADMISSIBLE AS EVIDENCE OF ADMISSION. ALTHOUGH IT IS CONTENDED THAT SILENCE HERE STEMMED FROM THE KNOWLEDGE OF BLAKE PERSONNEL THAT THE AMENDMENTS WERE RECEIVED,THE SITUATION IS SUCH THAT IF THE CONTRACTING OFFICER HAD NOT INQUIRED AS TO THE ACKNOWLEDGMENT OMISSION AFTER THE OPENING OF BIDS AND HAD ATTEMPTED TO MAKE AN AWARD ON THE BASIS OF THE ABSENCE OF RESPONSE TO HIS QUESTIONS PRIOR TO THE BID OPENING, BLAKE COULD HAVE DISAVOWED ITS SILENCE AS BEING AN INDICATION OF ASSENT BY PRODUCING OTHER EQUALLY VALID REASONS FOR NOT REPLYING.

IN 33 COMP. GEN. 508, WE CONSIDERED A SITUATION WHERE A BIDDER'S REPRESENTATIVE ORALLY ACKNOWLEDGED BEFORE BID OPENING THE RECEIPT OF AMENDMENTS AND IT WAS HELD THAT SUCH ACKNOWLEDGMENT WAS EFFECTIVE IF IT COULD BE DETERMINED WITHOUT DOUBT THAT THE REPRESENTATIVE HAD LEGAL AUTHORITY TO BIND THE BIDDER. IN THAT CASE THERE WAS A POSITIVE ORAL AFFIRMATION THAT THE AMENDMENTS WERE RECEIVED SO THAT THERE COULD BE NO MISUNDERSTANDING AS TO THE ACKNOWLEDGMENT. THAT CASE IS THEREFORE DISTINGUISHABLE FROM THE IMMEDIATE CASE SINCE SILENCE, AND NOTHING MORE, DOES NOT HAVE THE EVIDENTIARY ATTRIBUTES OF A POSITIVE ORAL AFFIRMATION OF AMENDMENT RECEIPT.

BID RESPONSIVENESS MUST BE ESTABLISHED AS OF THE BID OPENING TIME. COMP. GEN. 554. THEREFORE, IT IS NOT IMPORTANT WHAT MAY HAVE TRANSPIRED AFTER THE BID OPENING AND IT IS NOT NECESSARY FOR US TO CONSIDER THE CONVERSATION WHICH TOOK PLACE BETWEEN THE CONTRACTING OFFICER AND THE ASSISTANT SECRETARY AFTER THE BID OPENING. HOWEVER, WE MIGHT POINT OUT THAT WE HAVE RECEIVED AFFIDAVITS FROM THE CONTRACTING OFFICER AND THE DEPUTY DISTRICT COUNSEL WHICH RELATE THEIR VERSION OF WHAT WAS SAID AFTER THE BID OPENING WHICH IS DIFFERENT FROM WHAT WAS STATED BY YOUR PERSONNEL. THE CONTRACTING OFFICER STATED THAT THE RESPONSE HE RECEIVED FROM ONE OF YOUR PERSONNEL WAS THAT "HE DID NOT KNOW WHY THE AMENDMENTS HAD NOT BEEN ACKNOWLEDGED BUT THAT HE PRESUMED THE BID INCLUDED ALL AMENDMENTS AND THAT THE OMISSION WAS A MERE INADVERTENCE OF THE SORT HE FELT THE GOVERNMENT SHOULD TREAT AS A MINOR IRREGULARITY, BUT THAT HE WOULD HAVE TO CHECK IT OUT WITH HIS HOME OFFICE.' THE DEPUTY DISTRICT COUNSEL LARGELY CORROBORATES THE CONTRACTING OFFICER. THESE STATEMENTS, INDICATING WHAT ONE OF YOUR PERSONNEL IS UNDERSTOOD TO HAVE SAID, LEND SUPPORT TO THE STATEMENT IN THE ADMINISTRATIVE REPORT THAT THE SILENCE OF YOUR PERSONNEL WAS NOT INTENDED AS AN ACKNOWLEDGMENT OF THE AMENDMENTS. IN THESE CIRCUMSTANCES, BLAKE COULD HAVE CONTENDED THAT THE REASON ITS PERSONNEL REMAINED SILENT WAS THAT THEY DID NOT KNOW WHETHER OR NOT THE AMENDMENTS HAD BEEN RECEIVED. IN THAT EVENT, THE CONTRACTING OFFICER WOULD NOT HAVE BEEN ABLE TO PROVE OTHERWISE.

AS INDICATED ABOVE, THE CONTRACTING OFFICE ESTIMATED THAT THE CHANGES IN THE AMENDMENTS WOULD RESULT IN AN INCREASE IN PRICE FROM $35,000 TO $60,000. YOU SAY THAT THIS IS REASONABLE ONLY IF A CHANGE IN AMENDMENT 0002, WHICH AUTHORIZED BLASTING NOT PREVIOUSLY PERMITTED, IS DISREGARDED. IN THAT CONNECTION, YOU HAVE FURNISHED LETTERS FROM TWO COMPANIES WHICH BID TO YOUR COMPANY TO PERFORM THE EXCAVATION WORK. ONE LETTER STATES THAT IF THE BLASTING RESTRICTION HAD NOT BEEN REMOVED, IT WOULD HAVE BID $242,000 HIGHER AND THE OTHER LETTER STATES THAT BUT FOR THE CHANGE IT WOULD HAVE BID $268,360 MORE. YOU THEREFORE CONCLUDE THAT THE CHANGES SHOULD HAVE RESULTED IN ABOUT A $200,000 DECREASE IN PRICE INSTEAD OF AN INCREASE IN PRICE AS CONTENDED BY THE CONTRACTING OFFICE. IN VIEW THEREOF, YOU OBSERVE THAT A PRICE DECREASE IS TO THE COMPETITIVE ADVANTAGE OF OTHER BIDDERS AND CANNOT BE CONSTRUED AS BEING IN DEROGATION OF THEIR RIGHTS. IN SUPPORT OF THIS VIEW, YOU CITE DECISIONS OF OUR OFFICE WHERE FAILURES TO ACKNOWLEDGE AMENDMENTS RESULTING IN REDUCTIONS OF COSTS TO BIDDERS WERE WAIVED.

OUR OFFICE HAS RECEIVED A SUPPLEMENTAL REPORT FROM THE CONTRACTING OFFICE EXPLAINING ITS STATEMENT THAT THE AMENDMENTS WOULD RESULT IN AN INCREASE IN PRICE FROM $35,000 TO $60,000. THE SUPPLEMENTAL REPORT READS: 1. FIVE AMENDMENTS WERE ISSUED DURING THE BIDDING PERIOD. A REVIEW OF THESE AMENDMENTS WAS MADE, WHICH INDICATED THAT THE CHANGES THEREIN WOULD RESULT IN AN INCREASE IN THE CONTRACT COST OF ABOUT $55,000. THE BIDS MAY OR MAY NOT REFLECT THIS INCREASE DEPENDING UPON THE JUDGEMENT OF EACH BIDDER. SOME CHANGES WERE INFORMATIVE ONLY. SOME CLEARED UP DISCREPANCIES BETWEEN THE PLANS AND SPECIFICATIONS. SOME CHANGES RESULTED IN DELETIONS, WHILE OTHERS PROVIDED FOR ADDITIONAL WORK. SIXTY-THREE (63) DRAWINGS WERE REISSUED. TWO (2) NEW DRAWINGS WERE ADDED. FORTY DRAWINGS, MORE OR LESS, WERE MODIFIED BY THE AMENDMENTS. OTHER THAN THE CHANGES SHOWN BELOW, MOST OF THE DELETIONS AND ADDITIONS DID NOT MATERIALLY AFFECT THE CONTRACT COST. 3. AMENDMENT NO. 1 CHANGED BID OPENING DATE TO 12 MARCH 1968.

AMENDMENT NO. 2--- MAJOR CHANGES:

A. RELOCATION OF GAS MAIN PLUS $4,000

B. SPEC. CHANGE FOR STERILIZER MINUS 1,000

C. CONTR. FURN. X-RAY EQUIPMENT IN LIEU OF GF PLUS 23,000

D. DWGS. MOD. TO PROVIDE CONFERENCE ROOM (RM G-20) PLUS 8,000

E. ELECTRICIAN RATE. INCREASE FROM $5.00 TO $5.40 PLUS 14,200

F. CORRIDOR PARTITION. INCREASE CMU

FROM 4 INCHES TO 6 INCHES PLUS 800

AMENDMENT NO. 3--- ADD ELECTRICAL PARKING GATE PLUS 400

AMENDMENT NO. 4--- TELEGRAM POSTPONING BID OPENING DATE TO 21 MARCH

AMENDMENT NO. 5

A. CHANGED MARBLE FROM IMPORT TO DOMESTIC NO CHANGE

B. ADDED RESIDENT ENGINEER OFFICE PLUS 6,000

NET INCREASE IN CONTRACT COST PLUS $55,400

FURTHER, WITH RESPECT TO THE CHANGE IN AMENDMENT 0002 WHICH REMOVED THE RESTRICTION AGAINST BLASTING, THE CONTRACTING OFFICE HAS REPORTED: OUR JUDGMENT IN MODIFYING PARAGRAPH 6.5 ROCK EXCAVATIONS, OF THE SPECIFICATIONS BY AMENDMENT NO. 0002, 29 FEBMRUARY 1968, WHICH PERMITTED BLASTING UNDER RIGID CONDITIONS WAS TO ENCOURAGE COMPETITION FOR REMOVAL OF ROCK EXCAVATION BY MORE THAN ONE METHOD. THIS AMENDED SPECIFICATION REQUIRED THE CONTRACTOR TO WORK IN A VERY CAREFUL MANNER AND PLACES FULL RESPONSIBILITY ON HIM FOR ANY DAMAGE WHICH MIGHT BE INCURRED AS A RESULT OF HIS OPERATIONS. IN OUR OPINION, IT WAS ESTIMATED THAT THE COST WOULD BE MORE OR LESS THE SAME FOR ROCK REMOVAL EITHER BY DRILLING OR BLASTING. ANY VARIATION IN COST WOULD BE DUE TO EACH BIDDERS DETERMINATION OF THE EXISTING ROCK CONDITIONS FROM THE DRILL HOLE DATA AND HIS APPROACH TO THE PROPOSED METHOD OF REMOVAL.

IN CASES, AS HERE, WHERE THERE IS A CONFLICT BETWEEN THE CONTENTIONS OF A BIDDER AND THE REPORT OF THE PROCUREMENT OFFICE AS TO THE EFFECT AN AMENDMENT WILL HAVE UPON THE PRICE OF A PROCUREMENT, IT IS ORDINARILY THE PRACTICE OF OUR OFFICE TO ACCEPT THE DETERMINATION OF THE COGNIZANT TECHNICAL ACTIVITY. 47 COMP. GEN. 418, FEBRUARY 15, 1968; B-161896, SEPTEMBER 1, 1967; B-161268, JULY 14, 1967. IN THIS CASE, HOWEVER, IN VIEW OF THE SUBSTANTIAL DIFFERENCE IN THE ESTIMATES BETWEEN THE CORPS OF ENGINEERS AND YOUR COMPANY AS TO THE EFFECT OF THE AMENDMENTS ON THE PRICE, IT IS OBVIOUS THAT THERE IS A MISUNDERSTANDING OR ERROR EITHER ON THE PART OF THE CONTRACTING OFFICE OR THE TWO COMPANIES WHICH FURNISHED YOU STATEMENTS AS TO THE COST IF BLASTING WAS NOT PERMITTED. HOWEVER, WE DO NOT THINK IT IS NECESSARY FOR US TO DECIDE WHICH PARTY IS CORRECT, BECAUSE THERE ARE OTHER CHANGES IN THE AMENDMENTS WHICH OBVIOUSLY REQUIRE THE CONTRACTOR TO PERFORM ADDITIONAL WORK AND FURNISH EQUIPMENT OF SUCH MAGNITUDE AS TO HAVE A SUBSTANTIAL EFFECT UPON AND TO INCREASE THE QUANTITY OF WORK INVOLVED. THE DECISIONS CITED BY YOU, 41 COMP. GEN. 550, B-161832, AUGUST 17, 1967, B-159412, JULY 26, 1966, B-156651, JUNE 21, 1965, AND B-154409, AUGUST 11, 1964, WHEREIN FAILURE TO ACKNOWLEDGE AMENDMENTS WAS WAIVED INVOLVED SITUATIONS WHERE THE REDUCTION WAS TRIVIAL OR NEGLIGIBLE OR THE ITEM REQUIRED BY THE INVITATION WITHOUT AMENDMENTS WOULD BE SUPERIOR TO THE ITEM REQUIRED BY THE INVITATION WITH AMENDMENTS. ONE DECISION DID INVOLVE A CONSTRUCTION CONTRACT AND WHILE, IN THE RECITATION OF THE FACTS OF THE CASE WE REFERRED TO A "NET REDUCTION" CREATED BY AN AMENDMENT, IN OUR DISPOSITION OF THE CASE WE DID NOT CONSIDER THAT THE AMENDMENT DID ANY MORE THAN "MERELY" EFFECT A DECREASE IN THE COST OF PERFORMANCE. THUS IN THE DISPOSITION OF THE CASE, THE AMENDMENT WAS NOT CONSIDERED TO CONTAIN ANY ITEMS RESULTING IN AN INCREASE IN PRICE--- ONLY ITEMS RESULTING IN A DECREASE IN PRICE.

IN VIEW OF THE SUBSTANTIAL INCREASES IN THE WORK AND MATERIAL REQUIRED IN THE AMENDMENTS HERE IN QUESTION, AND AWARD TO YOUR COMPANY ON THE BASIS OF THE ORIGINAL INVITATION COULD NOT BE SAID TO BE AN AWARD OF A PROCUREMENT LARGER IN SCOPE THAN THAT PROVIDED IN THE AMENDED INVITATION. THE WORK AND FURNISHINGS REQUIRED BY THE AMENDED INVITATION IS SIGNIFICANTLY DIFFERENT FROM THE WORK REQUIRED BY THE ORIGINAL INVITATION. IN THAT CONNECTION PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION, RELATIVE TO MINOR INFORMALITIES OR IRREGULARITIES IN BIDS, READS IN PART AS FOLLOWS:

2-405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

(IV) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF---

(B) THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON EQUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PURCHASING CTIVITY;

THE OUTLINE FURNISHED BY THE CONTRACTING OFFICE OF THE CHANGES BROUGHT ABOUT BY THE AMENDMENTS SHOWS THAT THE CHANGES NOT ONLY HAVE AN AFFECT UPON THE COST OF THE WORK, BUT ALSO UPON THE QUANTITY OF WORK. THUS, THE FAILURE HERE TO ACKNOWLEDGE THE AMENDMENTS WOULD NOT COME WITHIN THE PURVIEW OF ASPR 2-405 AS CONSTITUTING A MINOR INFORMALITY.

YOU HAVE CONTENDED FURTHER THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENTS IS NOT REQUIRED TO BE CONSIDERED AS A BASIS FOR REJECTION OF THE BID BECAUSE THE INVITATION PROVIDES THAT FAILURE TO ACKNOWLEDGE "MAY" CAUSE THE BID TO BE REJECTED. A SIMILAR CONTENTION WAS CONSIDERED IN B-160257, DECEMBER 15, 1966, WHEREIN WE HELD:

IN REGARD TO YOUR CONTENTION THAT THE LANGUAGE CONTAINED IN THE IFB AND AMENDMENT NO. 001 CONCERNING THE CONSEQUENCE OF FAILURE TO ACKNOWLEDGE AN AMENDMENT (I.E.'MAY RESULT IN REJECTION OF YOUR BID"), WAS MERELY PERMISSIVE AND NOT MANDATORY, IT SHOULD BE NOTED THAT SUCH LANGUAGE IS A CORRECT DESCRIPTION OF THE LAW PERTAINING THERETO SINCE NOT ALL FAILURES TO ACKNOWLEDGE AN AMENDMENT WILL RESULT IN REJECTION OF THE BID. IF THE FAILURE INVOLVES AN AMENDMENT WHICH MAY AFFECT PRICE, QUANTITY, QUALITY OR DELIVERY, THE BID MUST BE REJECTED; IF IT DOES NOT, THE FAILURE MAY BE WAIVED AND THE BID ACCEPTED. THE CONTRACTING OFFICER HAS NO DISCRETION IN SUCH MATTERS AND THE PERMISSIVE LANGUAGE REFERRED TO DOES NOT CONFER SUCH AUTHORITY. * * *

UNDER THE HEADING "INFORMATION REGARDING BIDDING MATERIAL, BID GUARANTEE, AND BONDS," APPEARING ON THE FIRST PAGE OF THE INVITATION FOR BIDS, STANDARD FORM 20, THERE APPEARS THE FOLLOWING LIST: REPRESENTATIONS AND CERTIFICATIONS, STD FORM 18-B BID FORM, STD FORM 21 PRICE SCHEDULE, ENG FORM 1618-R INSTRUCTIONS TO BIDDERS, STD FORM 22 CONSTRUCTION CONTRACT, STD FORM 23 GENERAL PROVISIONS-CONSTRUCTION PROJECTS, STD FORM 23A LABOR STANDARDS PROVISIONS (EXCESS OF $2,000) STD FORM 19A SPECIFICATIONS; INVITATION NO. DACA31-68-B-0019 DRAWINGS AS LISTED IN SPECIAL PROVISIONS OF THE SPECIFICATIONS AMENDMENTS: AS MAY BE ISSUED PRIOR TO BID OPENING DATE

INASMUCH AS THE BID FORM STATES THAT THE BIDDER PROPOSES TO PERFORM THE WORK "IN COMPLIANCE WITH THE ABOVE-DATED INVITATION FOR BIDS" AND THE LAST ITEM IN THE ABOVE-QUOTED LIST IN THE INVITATION IS "AMENDMENTS: AS MAY BE ISSUED PRIOR TO BID OPENING DATE," IT HAS BEEN CONTENDED ALSO THAT ACTUAL ACKNOWLEDGMENT OF RECEIPT OF THE AMENDMENTS WAS ONLY A MATTER OF FORM WHICH SHOULD BE WAIVED. HOWEVER, CONSIDERING THE LIST IN CONTEXT, WE CONCLUDE THAT IT IS FOR INFORMATION PURPOSES ONLY TO IDENTIFY THE VARIOUS PARTS OF THE INVITATION PACKAGE. SOME OF THE LISTED ITEMS ARE FORMS TO BE COMPLETED BY THE BIDDER AND OTHERS ARE FORMS OTHERWISE INCORPORATED BY REFERENCE IN THE BID FORM. LOOKING AT THE LIST FROM THAT STANDPOINT, THE REFERENCE THEREIN TO AMENDMENTS "AS MAY BE ISSUED" HAS FOR ITS PURPOSE THE ALERTING OF PROSPECTIVE BIDDERS TO THE POSSIBILITY THAT AMENDMENTS MAY BE ISSUED TO THE INVITATION. THE LISTING, IN OUR OPINION, DOES NOT, IN AND OF ITSELF, IMPOSE MANDATORY REQUIREMENTS UPON BIDDERS BY OPERATION OF LAW. IN THE CIRCUMSTANCES, THE INCLUSION OF A REFERENCE TO AMENDMENTS IN SUCH LISTING WAS NOT FOR THE PURPOSE OF IMPOSING AN OBLIGATION UPON THE BIDDERS TO COMPLY WITH ANY OR ALL AMENDMENTS. SINCE WE CANNOT HOLD THAT YOUR COMPANY WOULD BE BOUND TO PERFORM IN STRICT ACCORDANCE WITH THE INVITATION AS AMENDED, WE MUST CONCLUDE THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENTS MAY NOT BE WAIVED AS A MATTER OF FORM.