B-164038, JUN. 17, 1968

B-164038: Jun 17, 1968

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J. FERNANDEZ: REFERENCE IS MADE TO YOUR LETTER OF APRIL 11. PROTESTING THAT YOUR LOW BID UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) INVITATION FOR BIDS E-68-20 SHOULD NOT HAVE BEEN REJECTED ON THE BASIS THAT THE PERSON WHO EXECUTED THE BID WAS NOT AN AUTHORIZED CORPORATE OFFICER OF YOUR FIRM. YOUR BELIEF THAT THE BID WAS REJECTED FOR THE FOREGOING REASON APPARENTLY STEMS FROM A CONVERSATION IN WHICH THE NASA BUYER RAISED QUESTIONS AS TO THE ACCEPTABILITY OF THE BID SIGNATURE. THE BUYER STATED THAT IN THE CONVERSATION HE ADVISED YOU THAT THE REASON FOR THE REJECTION OF YOUR BID WAS THE FAILURE OF THE BID TO ACKNOWLEDGE AMENDMENT 2 TO THE INVITATION. WE WILL THEREFORE CONSIDER YOUR PROTEST AS ONE INVOLVING THE REJECTION OF YOUR BID AS NONRESPONSIVE FOR THAT REASON.

B-164038, JUN. 17, 1968

TO MR. J. FERNANDEZ:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1968, PROTESTING THAT YOUR LOW BID UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) INVITATION FOR BIDS E-68-20 SHOULD NOT HAVE BEEN REJECTED ON THE BASIS THAT THE PERSON WHO EXECUTED THE BID WAS NOT AN AUTHORIZED CORPORATE OFFICER OF YOUR FIRM.

YOUR BELIEF THAT THE BID WAS REJECTED FOR THE FOREGOING REASON APPARENTLY STEMS FROM A CONVERSATION IN WHICH THE NASA BUYER RAISED QUESTIONS AS TO THE ACCEPTABILITY OF THE BID SIGNATURE. HOWEVER, IN A WRITTEN STATEMENT FURNISHED OUR OFFICE BY NASA, THE BUYER STATED THAT IN THE CONVERSATION HE ADVISED YOU THAT THE REASON FOR THE REJECTION OF YOUR BID WAS THE FAILURE OF THE BID TO ACKNOWLEDGE AMENDMENT 2 TO THE INVITATION. WE WILL THEREFORE CONSIDER YOUR PROTEST AS ONE INVOLVING THE REJECTION OF YOUR BID AS NONRESPONSIVE FOR THAT REASON.

YOUR COMPANY SUBMITTED THE LOW BID OF $17,981. THE NEXT LOW BIDDER TO WHOM THE AWARD WAS MADE SUBMITTED A BID OF $19,775. THE INVITATION UNDER WHICH BIDS WERE SUBMITTED PROVIDED FOR THE FURNISHING OF A 750 KVA LOAD CENTER UNIT SUBSTATION. AMENDMENT 1 TO THE INVITATION, WHICH WAS ACKNOWLEDGED IN THE BID FROM YOUR COMPANY, DELETED CERTAIN SPECIFICATIONS AND SUBSTITUTED OTHERS. ONE OF THE REQUIREMENTS IN THAT AMENDMENT WAS THAT "TESTING OF THE COMPLETE UNIT BY FACTORY PERSONNEL SHALL BE PROVIDED UPON DELIVERY.' AFTER ISSUANCE OF THE AMENDMENT, A PROSPECTIVE BIDDER RAISED QUESTIONS AS TO THE SCOPE OF THE TESTS, THE PLACE OF PERFORMANCE AND THE FURNISHING OF TEST EQUIPMENT. IN RESPONSE TO THE INQUIRY, AMENDMENT 2 WAS ISSUED PROVIDING AS FOLLOWS: ,TESTING OF COMPLETE UNIT SHALL BE INTERPRETED TO CONSIST OF INDUSTRY ACCEPTED STANDARD PRACTICE OF ASSURING PROPER ELECTRICAL AND MECHANICAL OPERATION OF THE ASSEMBLED EQUIPMENT AFTER INSTALLATION AT JOB SITE. REQUIRED TEST EQUIPMENT AND TOOLS SHALL BE SUPPLIED BY THE MANUFACTURER. ELECTRIC POWER WILL BE FURNISHED BY THE GOVERNMENT.'

OTHER THAN THE FOREGOING, THE AMENDMENT PROVIDED FOR THE CORRECTION OF TWO TYPOGRAPHICAL ERRORS IN AMENDMENT 1. AS INDICATED ABOVE, THE BID FROM YOUR COMPANY DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT 2.

THE CONTRACTING OFFICER HAS STATED THAT THE ISSUANCE OF AMENDMENT 2 WAS PREDICATED UPON THE ASSUMPTION THAT ALL BIDDERS WERE IN DOUBT AS TO THE INTENT OF AMENDMENT 1 AND THAT, SINCE IT ADDED OR VERIFIED THE REQUIREMENT FOR FIELD TESTING, IT WENT TO THE SUBSTANCE OF THE BID AND THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS FATAL. IN THAT CONNECTION, NASA PROCUREMENT REGULATION 2.405 (D) (2) PROVIDES THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS CAN BE WAIVED ONLY IF THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT ON PRICE, QUALITY, QUANTITY OR DELIVERY.

IN OUR VIEW, AMENDMENT 2 DID NOT AFFECT THE SUBSTANCE OF THE SPECIFICATIONS. AMENDMENT 2 PROVIDED THAT THE TESTING SHALL CONSIST OF THE STANDARD PRACTICE OF ASSURING PROPER ELECTRICAL AND MECHANICAL OPERATION OF THE EQUIPMENT. WE BELIEVE THAT THIS WAS CONTEMPLATED BY AMENDMENT 1 SINCE IT IS REASONABLE TO ASSUME THAT TESTING WILL BE ACCOMPLISHED ACCORDING TO STANDARD PRACTICES. ALTHOUGH AMENDMENT 2 PROVIDED FOR TESTING AFTER INSTALLATION AT THE JOB SITE, AMENDMENT 1 PROVIDED FOR TESTING UPON DELIVERY. HENCE, WE DO NOT VIEW THE PROVISION IN AMENDMENT 2 FOR TESTING AFTER INSTALLATION AT THE JOB SITE AS A MATERIAL CHANGE. ALSO, WHILE AMENDMENT 2 PROVIDED THAT THE TEST EQUIPMENT AND TOOLS WERE TO BE SUPPLIED BY THE MANUFACTURER AND AMENDMENT 1 WAS SILENT IN THAT REGARD, THE FIRST AMENDMENT IMPOSED THE OBLIGATION FOR TESTING UPON THE CONTRACTOR. IT WOULD SEEM TO FOLLOW, THEREFORE, THAT THE RESPONSIBILITY TO PROVIDE WHATEVER TEST EQUIPMENT IS NECESSARY TO ACCOMPLISH THAT END WAS IMPLICIT IN THAT TESTING OBLIGATION. WE NOTE THAT AMENDMENT 2, UNLIKE AMENDMENT 1, PROVIDED THAT ELECTRIC POWER WOULD BE FURNISHED BY THE GOVERNMENT. HOWEVER, SINCE THE EQUIPMENT WAS TO BE TESTED UPON DELIVERY, THE USE OF POWER AT THE SITE NECESSARILY WOULD BE ENTAILED. IN THE CIRCUMSTANCES, AMENDMENT 2 DOES NOT APPEAR TO US TO HAVE MADE CHANGES OF ANY SUBSTANCE IN THE SPECIFICATIONS AS AMENDED BY AMENDMENT 1. ACCORDINGLY, IN OUR OPINION, IT WOULD HAVE BEEN APPROPRIATE FOR THE CONTRACTING OFFICER TO HAVE WAIVED YOUR FAILURE TO ACKNOWLEDGE AMENDMENT 2 UNDER THESE CIRCUMSTANCES.

HOWEVER, IT APPEARS THAT THE CONTRACTING OFFICER BELIEVED THAT SOME SUBSTANTIVE CHANGE WAS CREATED BY THE SECOND AMENDMENT IN VIEW OF THE INQUIRY RECEIVED CONCERNING THE FIRST AMENDMENT, AND THAT THE REJECTION OF YOUR COMPANY'S BID FOR FAILURE TO ACKNOWLEDGE THE SECOND AMENDMENT WAS REQUIRED IN THE INTEREST OF THE FORMAL ADVERTISING PROCEDURES. SINCE THE CONTRACTING OFFICER ACTED IN APPARENT GOOD FAITH BASED ON HIS INTERPRETATION OF THE MATERIALITY OF AMENDMENT 2, WE DO NOT BELIEVE THAT IT WOULD BE APPROPRIATE AT THIS DATE TO DISTURB THE AWARD MADE UNDER THE INVITATION.