B-164016, MAY 28, 1968

B-164016, MAY 28, 1968

TO AMERICAN AQUATICS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1968, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00600-68-B-0631, ISSUED ON MARCH 15, 1968, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C. FOR SERVICES TO OPERATE AND MAINTAIN ONE OUTDOOR SWIMMING POOL FOR A TERM OF NINETY-SIX DAYS AND ONE INDOOR SWIMMING POOL FOR A TERM OF TWELVE MONTHS, AT THE NAVAL STATION, ANACOSTIA ANNEX, WASHINGTON, D.C.

BIDS WERE SCHEDULED FOR OPENING AT 10:30 A.M., E.S.T. ON APRIL 3, 1968. ON MARCH 21, 1968, DUE TO A CHANGE IN REQUIREMENTS, AN AMENDMENT TO THE INVITATION WAS ISSUED INCREASING THE NUMBER OF QUALIFIED LIFEGUARDS TO BE ON DUTY AT EACH POOL FROM TWO TO THREE.

THE NAVY HAS ADVISED THAT SUBSEQUENT TO THE ORIGINAL MAILING, YOU REQUESTED A BID SET WHICH WAS SENT TO YOU ON MARCH 21, 1968. THE NAVY FURTHER STATES THAT THE AMENDMENT TO THE INVITATION WAS SENT TO YOU ON MARCH 25, 1968, AND RECORDS OF THE CONTRACTING OFFICE ARE FURNISHED TO SUBSTANTIATE THE CLAIM. YOUR ORIGINAL BID WAS RECEIVED BY BID OPENING BUT IT DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENT AS REQUIRED BY PARAGRAPH 4 OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" , PAGE 3 OF THE INVITATION, WHICH STATES: "RECEIPT OF AN AMENDMENT TO A SOLICITATION BY AN OFFEROR MUST BE ACKNOWLEDGED (A) BY SIGNING AND RETURNING THE AMENDMENT, (B) ON THE REVERSE OF STANDARD 33, OR (C) BY LETTER OR TELEGRAM. SUCH ACKNOWLEDGMENT MUST BE RECEIVED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS.'

UNDER THE TERMS OF THE INVITATION AS AMENDED, AN AWARD COULD BE MADE ONLY ON A BASIS OF PROVIDING THREE QUALIFIED LIFEGUARDS. CONTRARY TO THIS, YOUR BID, WITHOUT ACKNOWLEDGMENT OF THE AMENDMENT, OFFERED TO FURNISH TWO QUALIFIED LIFEGUARDS AND WAS ADMINISTRATIVELY CONSIDERED AS NONRESPONSIVE.

YOU CONTEND THAT YOUR FIRM SHOULD RECEIVE CONSIDERATION FOR THE AWARD ON THE BASES THAT (1) YOU DID NOT RECEIVE THE AMENDMENT AND (2) YOUR BID WAS LOW. THE RECORD SHOWS THAT YOUR BID WITHOUT THE ACKNOWLEDGED AMENDMENT OFFERS A TOTAL PRICE FOR SERVICES AND MAINTENANCE AT $36,998, WITH NO DISCOUNT FOR PROMPT PAYMENT. THE BID OF DYNAMIC ENTERPRISES, INCORPORATED, WITHOUT CONSIDERATION OF THE AMENDMENT, OFFERED A TOTAL PRICE FOR SERVICES AND MAINTENANCE OF $39,431.40, WITH A 10 PERCENT DISCOUNT IF PAID WITHIN 20 DAYS. IF THE ORIGINAL BID WITHOUT AMENDMENT HAD BEEN ACCEPTABLE, THE EVALUATION OF THE DYNAMIC ENTERPRISES' BID WOULD HAVE BEEN LOW AT $35,488.26, MORE THAN $1,500 BELOW YOUR BID PRICE AS SUBMITTED.

IT IS WELL ESTABLISHED THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE WHERE SUCH AMENDMENT, AS HERE, AFFECTS PRICE, QUANTITY OR QUALITY. 37 COMP. GEN. 785. IN 42 COMP. GEN. 502 WE STATED THAT A BID MAY BE REGARDED AS RESPONSIVE ONLY IF UPON ACCEPTANCE THE GOVERNMENT MAY REQUIRE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE INVITATION WHETHER OR NOT THE CONTRACTOR ELECTS SO TO PERFORM. IN YOUR CASE WE DO NOT BELIEVE THAT THE GOVERNMENT COULD HAVE REQUIRED YOU TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS AS AMENDED WITHOUT YOUR ACKNOWLEDGMENT OF THE AMENDMENT. YOUR BID WAS RESPONSIVE ONLY TO THE ORIGINAL INVITATION BUT NOT TO THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT AS EMBODIED IN THE AMENDMENT AND THE CONTRACTING OFFICER WAS WITHOUT LEGAL AUTHORITY TO ACCEPT YOUR BID SINCE THE PROVISIONS OF THE AMENDMENT MATERIALLY AFFECTED THE SERVICES REQUIRED UNDER THE INVITATION. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION 2-405.

IT IS REGRETTABLE THAT YOU DID NOT RECEIVE THE AMENDMENT. HOWEVER, AS NOTED ABOVE, NAVY RECORDS SHOW THAT THE AMENDMENT WAS MAILED TO YOU ON MARCH 25. IN ANY CASE, FAILURE OF YOUR FIRM TO RECEIVE THE AMENDMENT WOULD NOT JUSTIFY ACCEPTING YOUR BID IN THE CIRCUMSTANCES DESCRIBED. COMP. GEN. 126. ACCORDINGLY, WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND YOUR PROTEST MUST BE DENIED.