B-165185, DEC. 12, 1968

B-165185: Dec 12, 1968

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INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. AMENDMENT NO. -P0006 WAS ISSUED AND PAGE 2 OF THE INVITATION WAS THEREBY MODIFIED TO READ. WE HAVE COMPUTED FOR EACH BIDDER. YOU APPARENTLY WERE HIGH BIDDER ON BOTH AMENDED ALTERNATES AT $51. IT IS YOUR CONTENTION THAT NONE OF THE OTHER FOUR BIDDERS IS RESPONSIVE TO THE INVITATION AND THAT ALL FOUR BIDS SHOULD THEREFORE BE REJECTED. YOU HAVE FURTHER ASSERTED THAT NONE OF THESE FOUR OFFERORS IS EQUIPPED TO PERFORM THE CONTRACT IN A TIMELY FASHION. THAT NONE IS THEREFORE A RESPONSIBLE BIDDER. YOU CLAIM THAT THERE IS REASON TO SUSPECT THAT AT LEAST ONE OF THE FOUR CONCERNS IS NOT NOW COMPLYING WITH SECTION 6 (A) (1) OF THE FAIR LABOR STANDARDS ACT OF 1938.

B-165185, DEC. 12, 1968

TO SERVICON, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY ONE OF FOUR-NAMED BIDDERS UNDER INVITATION FOR BIDS NO. M67001-69-B-0026, ISSUED BY THE UNITED STATES MARINE CORPS, PURCHASING AND CONTRACTING BRANCH, CAMP LEJEUNE, NORTH CAROLINA.

THE INVITATION, ISSUED ON JULY 29, 1968, SOLICITED BIDS FOR CLEANING MATTRESSES AND PADS, AS REQUIRED, FROM DATE OF AWARD THROUGH JUNE 30, 1969. PAGE 2 OF THE INVITATION SET OUT THE FIVE TYPES OF MATTRESSES AND PADS TO BE CLEANED, WITH ESTIMATED QUANTITIES FOR EACH TYPE. THE INVITATION AS ORIGINALLY ISSUED SOLICITED BIDS FOR EACH OF THE FIVE TYPES LISTED ON THE FOLLOWING BASES:

"A. PICKUP BY CONTR. AT PREMISES EA ----

"B. PICKUP BY CONTR. AT DESIGNATED CENTRAL POINT WITHIN

RESERVATION EA ----"

BIDDERS COULD SUBMIT THEIR BIDS ON THE BASIS OF EITHER OR BOTH OF THESE METHODS OF PICKUP, AND THE INVITATION PROVIDED THAT WHILE AWARD WOULD GENERALLY BE MADE TO A SINGLE BIDDER ON THE ENTIRE LOT, THE GOVERNMENT RESERVED THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT SUCH WOULD BE ADVANTAGEOUS TO THE GOVERNMENT.

ON AUGUST 6, 1968, AMENDMENT NO. -P0006 WAS ISSUED AND PAGE 2 OF THE INVITATION WAS THEREBY MODIFIED TO READ, WITH REGARD TO PICKUP METHODS, IN THE FOLLOWING MANNER:

"A. PICKUP CONTR. AT DESIGNATED CENTRAL POINT WITHIN

RESERVATION EA ---

"B. PICKUP AND DELIVERY BY GOVERNMENT VEHICLE AT

CONTRACTORS PLANT EA --- " THE AMENDMENT, IN EFFECT, MERELY SERVED TO DELETE THE "PREMISES" OPTION OF PICKUP AND ADD A "PICKUP AND DELIVERY BY GOVERNMENT VEHICLE" OPTION FOR THE BIDDER'S CHOICE. PARAGRAPH 4 OF STANDARD FORM 33A ADVISED BIDDERS THAT AMENDMENTS TO SOLICITATIONS SHOULD BE ACKNOWLEDGED IN THE FOLLOWING MANNER: "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 FORM 33, OR (C) BY LETTER OR TELEGRAM. SUCH ACKNOWLEDGMENT MUST BE RECEIVED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS.'

THE ABSTRACT REVEALS THAT FIVE BIDDERS RESPONDED WITH OFFERS. TWO BIDDERS, YOUR FIRM AND JONES FURNITURE COMPANY (JONES), ENTERED BIDS ON BOTH OF THE AMENDED PICKUP ALTERNATES DESCRIBED ABOVE. THE OTHER THREE BIDDERS, GOLDSBORO USED FURNITURE, INCORPORATED (GOLDSBORO), LIBERTY MATTRESS AND FURNITURE COMPANY (LIBERTY), AND SELLERS FURNITURE COMPANY (SELLERS), BID ONLY UPON THE ALTERNATE DESCRIBED AS "PICKUP BY CONTR. AT DESIGNATED CENTRAL POINT WITHIN RESERVATION.' WE HAVE COMPUTED FOR EACH BIDDER, USING THE UNIT PRICES BID AND THE ESTIMATED QUANTITIES FOR THE RESPECTIVE TYPES OF MATTRESSES AND PADS, TOTAL BID PRICES FOR ALL ITEMS ON BOTH OF THE PICKUP METHODS. GOLDSBORO APPEARS TO BE THE LOW BIDDER ON AMENDED ALTERNATE "A" AT $24,100; JONES' $34,793 BID ON AMENDED ALTERNATE "B" SEEMS TO BE LOW. YOU APPARENTLY WERE HIGH BIDDER ON BOTH AMENDED ALTERNATES AT $51,310 ON "A" AND $37,010 ON "B.'

IT IS YOUR CONTENTION THAT NONE OF THE OTHER FOUR BIDDERS IS RESPONSIVE TO THE INVITATION AND THAT ALL FOUR BIDS SHOULD THEREFORE BE REJECTED. YOU HAVE FURTHER ASSERTED THAT NONE OF THESE FOUR OFFERORS IS EQUIPPED TO PERFORM THE CONTRACT IN A TIMELY FASHION; THAT NONE HAS HAD PRIOR EXPERIENCE IN CLEANING MATTRESSES AND PADS IN THE QUANTITIES SPECIFIED IN THE INVITATION; AND THAT NONE IS THEREFORE A RESPONSIBLE BIDDER. FINALLY, YOU CLAIM THAT THERE IS REASON TO SUSPECT THAT AT LEAST ONE OF THE FOUR CONCERNS IS NOT NOW COMPLYING WITH SECTION 6 (A) (1) OF THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED (29 U.S.C. 206 (A) (1) (SUPP. III) ).

TWO OBJECTIONS ARE RAISED CONCERNING GOLDSBORO, THE APPARENT LOW BIDDER ON AMENDED ALTERNATE A": (1) AMENDMENT P-0006 WAS NOT ACKNOWLEDGED; (2) GOLDSBORO DID NOT BID ON ALL ITEMS SPECIFIED IN THE AMENDED INVITATION.

WITH RESPECT TO THE FIRST QUESTION, WE HELD IN 45 COMP. GEN. 604, 605 (1966), INVOLVING THE FAILURE OF A BIDDER TO ACKNOWLEDGE AN ADDENDUM, IN PERTINENT PART AS FOLLOWS:

"SECTION 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES, WITH REFERENCE TO MINOR INFORMALITIES OR IRREGULARITIES IN BIDS, THAT THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE THE DEFICIENCY, OR SHALL WAIVE SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. A MINOR INFORMALITY OR IRREGULARITY IS DEFINED AS ONE -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, DERS.'

WE CONSIDER GOLDSBORO'S FAILURE TO ACKNOWLEDGE THE AMENDMENT AS A WAIVABLE INFORMALITY OR IRREGULARITY UNDER ASPR 2-405. THE INVITATION BOTH AS ISSUED AND AS AMENDED PERMITTED BIDDERS TO SUBMIT OFFERS ON THE BASIS THAT THE CONTRACTOR WOULD PICK UP THE ARTICLES TO BE CLEANED AT A DESIGNATED CENTRAL POINT WITHIN THE RESERVATION. AS TO THIS ALTERNATE, NO CHANGE WAS MADE BY THE AMENDMENT OTHER THAN TO REDESIGNATE IT AS ALTERNATE "A" INSTEAD OF ALTERNATE "B.' THE FACT THAT GOLDSBORO BID ON UNAMENDED ALTERNATE "B" INSTEAD OF AMENDED ALTERNATE "A" WAS AN IRREGULARITY RELATING TO TECHNICAL FORM RATHER THAN TO SUBSTANCE. WAIVER OF THE FAILURE TO ACKNOWLEDGE THE AMENDMENT COULD NOT AFFECT IN ANY WAY THE SUBSTANTIVE RIGHTS OF EITHER THE GOVERNMENT OR OF THE OTHER BIDDERS.

YOUR SECOND OBJECTION TO GOLDSBORO'S BID RELATES TO ITS OBVIOUS FAILURE TO BID ON AMENDED ALTERNATE "B.' HOWEVER, THERE WAS NO REQUIREMENT IN THE INVITATION THAT BIDS HAD TO BE SUBMITTED ON BOTH ALTERNATES, NOR DID THE INVITATION PROVIDE THAT FAILURE TO BID ON BOTH ALTERNATES WOULD RESULT IN REJECTION OF THE BID. RATHER, THE GOVERNMENT ANTICIPATED THE POSSIBILITY THAT AWARD WOULD BE MADE BY ITEM RATHER THAN IN THE AGGREGATE SINCE THE FOLLOWING PROVISION WAS INSERTED IN THE INVITATION: "AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON THE ENTIRE LOT. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IT IS ADVANTAGEOUS TO THE GOVERNMENT.'

IN OUR DECISION 42 COMP. GEN. 61 (1962), WE HELD THAT A FAILURE TO BID ON ALL ALTERNATES IS NOT SUFFICIENT TO RENDER A BID NONRESPONSIVE AS LONG AS THE BID AS ACTUALLY SUBMITTED COVERS THE WHOLE PROJECT UNDER ONE OF THE ALTERNATES. THE FOLLOWING LANGUAGE FROM THAT DECISION IS PARTICULARLY PERTINENT:

"IN B-126389, FEBRUARY 3, 1956, WE HELD IN A SIMILAR CASE THAT A REQUEST IN AN INVITATION FOR THE SUBMISSION OF ALTERNATE BIDS IS FOR THE BENEFIT OF THE GOVERNMENT AND THAT WHERE A BID AS MADE COVERS THE ENTIRE WORK CONTEMPLATED UNDER ONE ALTERNATE, FAILURE TO RESPOND TO THE REQUEST FOR AN ALTERNATE BID ON ANOTHER BASIS IS NOT SUFFICIENT IN ITSELF TO REQUIRE A REJECTION OF THE BID. IT WAS CONSIDERED THAT SUCH A FAILURE CAN ONLY OPERATE TO THE ADVANTAGE OF OTHER BIDDERS RATHER THAN TO THEIR DISADVANTAGE SINCE A BIDDER NOT SUBMITTING AN ALTERNATE ELIMINATES HIMSELF FROM COMPETITION WITH OTHER BIDDERS SO FAR AS THE ALTERNATE WORK IS CONCERNED. IN 34 COMP. GEN. 633 WE HELD THAT THE INSTRUCTION TO BIDDERS THAT -ALL BIDS MUST BE FOR THE ENTIRE WORK AND MUT HAVE EACH APPLICABLE BLANK SPACE FILLED IN- WAS INTENDED SOLELY FOR THE BENEFIT OF THE GOVERNMENT AND THAT IF THE AWARD COVERED THE ENTIRE WORK- EVEN THOUGH NO QUOTATION WAS MADE ON AN ALTERNATE ITEM, THE AWARD WOULD BE VALID.'

IT IS THEREFORE OUR OPINION THAT GOLDSBORO'S BID IS RESPONSIVE AND THAT IF AWARD IS MADE TO THAT CONCERN ON THE BASIS OF AMENDED ALTERNATE "A," IT WILL CONSTITUTE A VALID AND BINDING CONTRACT. YOU ARE ACCORDINGLY ADVISED THAT YOUR PROTEST AS TO THE GOLDSBORO BID IS DENIED.

THE APPARENT LOW BIDDER ON THE BASIS OF AMENDED ALTERNATE "B" IS JONES. THE FIRST GROUND UPON WHICH YOU ASSERT THAT JONES' BID IS NONRESPONSIVE IS ITS FAILURE TO ACKNOWLEDGE THE AMENDMENT. THE RECORD INDICATES THAT JONES IN FACT DID NOT ACKNOWLEDGE THE AMENDMENT IN ANY OF THE THREE WAYS AUTHORIZED BY PARAGRAPH 4 OF STANDARD FORM 33A, QUOTED ABOVE. NEVERTHELESS, IT IS EVIDENT THAT JONES RECEIVED AND BID ON THE AMENDMENT, SINCE IN ITS BID THE PRICES WERE ENTERED ON THE AMENDED PAGE 2 OF THE INVITATION. THIS FAILURE TO ACKNOWLEDGE WAS ONE OF FORM AND NOT SUBSTANCE. IT HAS BEEN HELD THAT WHERE AN EXAMINATION OF THE ENTIRE RECORD AVAILABLE TO THE GOVERNMENT AT THE TIME OF BID OPENING SHOWS THAT A BIDDER HAS IN FACT RECEIVED AND CONSIDERED AN AMENDMENT, THE MERE FAILURE TO ACKNOWLEDGE IT IN THE USUAL FORM DOES NOT RENDER THE BID NONRESPONSIVE. 34 COMP. GEN. 581 (1955); 33 ID. 508 (1954); B-163744, MARCH 21, 1968. MOREOVER, IN ANY EVENT, WE WOULD CONSIDER JONES' FAILURE TO TECHNICALLY ACKNOWLEDGE THE AMENDMENT AS A WAIVABLE DEFECT SINCE WAIVER WOULD NOT AFFECT PRICE, QUANTITY, QUALITY OR PERFORMANCE, AND WOULD NOT OTHERWISE BE PREJUDICIAL TO THE RIGHTS OF THE GOVERNMENT OR OF OTHER BIDDERS.

YOU ALSO BRING INTO QUESTION JONES' FAILURE TO FILL IN COMPLETELY THE SECOND PAGE OF STANDARD FORM 33. WE NOTE THAT JONES DID NOT REPRESENT WHETHER IT WAS A REGULAR DEALER IN OR MANUFACTURER OF THE SUPPLIES OFFERED; HOWEVER, THIS SECTION IS EXPRESSLY STATED TO BE APPLICABLE ONLY TO SUPPLY CONTRACTS EXCEEDING $10,000, AND IT IS CLEAR THAT THE INVITATION CALLS FOR BIDS ON SERVICES TO BE RENDERED RATHER THAN SUPPLIES TO BE DELIVERED. IN THIS REGARD, SECTION 16 OF THE RULINGS AND INTERPRETATIONS UNDER THE WALSH-HEALEY ACT (41 U.S.C. 35 45), NO. 3, WOULD SEEM TO EXEMPT CLEANING CONTRACTS FROM THE OPERATION OF THE ACT. HOWEVER, OUR OFFICE DOES NOT CONSIDER THAT IT HAS ANY AUTHORITY TO DETERMINE WHETHER PARTICULAR FIRMS ARE REGULAR DEALERS UNDER THE WALSH-HEALEY ACT. 147620, JANUARY 22, 1962. RATHER, WE HAVE CONSIDERED THAT SUCH DETERMINATIONS REST WITH THE CONTRACTING OFFICER SUBJECT TO THE REVIEW OF THE DEPARTMENT OF LABOR WHICH HAS THE FINAL AUTHORITY. SEE B-148715, JUNE 25, 1962; B-155387, NOVEMBER 25, 1964; ASPR 12-604.

JONES, MOREOVER, DID NOT INDICATE WHETHER HE WAS OWNED OR CONTROLLED BY A PARENT COMPANY. HOWEVER, THAT SECTION OF STANDARD FORM 33 IS TO BE COMPLETED "IF APPLICABLE," AND IT IS CLEAR FROM JONES' ANSWER TO THE IMMEDIATELY PRECEDING SECTION THAT HE DOES BUSINESS "AS AN INDIVIDUAL.' IT WOULD THEREFORE SEEM THAT JONES IS NOT OWNED OR CONTROLLED BY A PARENT COMPANY. FURTHERMORE, WITHOUT REGARD TO THESE CONSIDERATIONS, IT IS ESTABLISHED THAT FAILURE TO PROVIDE INFORMATION AS TO BUSINESS AFFILIATIONS MAY BE WAIVED INASMUCH AS SUCH INFORMATION RELATES TO THE BIDDER'S RESPONSIBILITY RATHER THAN TO HIS RESPONSIVENESS. SEE 39 COMP. GEN. 881 (1960); B-147943, MARCH 23, 1962.

NO REPRESENTATION WAS MADE BY JONES AS TO WHETHER HE HAD ENTERED INTO A CONTINGENT-FEE ARRANGEMENT. SUCH FAILURE IS NOT FATAL, HOWEVER, AND JONES MAY BE PERMITTED, PURSUANT TO ASPR 1.508.1 (C), TO SUPPLY THIS DEFICIENCY AFTER BID OPENING AND PRIOR TO AWARD SINCE THAT PROVISION OF ASPR PROVIDES THAT IT SHALL BE CONSIDERED A MINOR INFORMALITY. B-149318, AUGUST 31, 1962; SEE ALSO, B-148548, APRIL 17, 1962.

FINALLY, JONES FAILED TO INDICATE WHETHER HE HAD PARTICIPATED IN THE EQUAL OPPORTUNITY PROGRAM. BUT FAILURE TO MAKE SUCH A REPRESENTATION HAS BEEN HELD NOT TO REQUIRE REJECTION OF THE BID. B 163775, MAY 6, 1968. WOULD APPEAR THAT THE EQUAL OPPORTUNITY DISCLOSURES ON PAGE 2 OF STANDARD FORM 33 ARE RELATED TO RESPONSIBILITY RATHER THAN RESPONSIVENESS.

YOUR THIRD BASIS FOR PROTEST AGAINST ANY AWARD TO JONES IS THAT HE DID NOT FILL IN THE PAGE ENTITLED "IMPORTANT INFORMATION TO BIDDERS.' THE CONTRACTING AGENCY REGARDS THIS AS A MINOR IRREGULARITY WHICH, UNDER THE FOLLOWING LANGUAGE IN ASPR 2-405, MAY BE CURED AFTER OPENING BY THE BIDDER OR, IN A PROPER CASE, WAIVED BY THE GOVERNMENT:

"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. * * *"

THE FAILURE BY JONES TO EXECUTE THIS PAGE INVOLVED THESE PARTICULARS:

(1) JONES DID NOT NOMINATE A PERSON IN HIS ORGANIZATION TO BE CONTACTED FOR INFORMATION REGARDING A BID. (2) JONES DID NOT INDICATE AN ADDRESS TO WHICH GOVERNMENT CHECKS IN PAYMENT OF INVOICES SUBMITTED UNDER ANY RESULTANT CONTRACT SHOULD BE MAILED.

(3) JONES DID NOT IDENTIFY AREAS IN WHICH COSTS INCURRED BY HIMSELF OR FIRST-TIER SUBCONTRACTORS ON ACCOUNT OF MANUFACTURING OR PRODUCTION WOULD AMOUNT TO MORE THAN 50 PERCENT OF THE CONTRACT PRICE; THIS FAILURE WAS EXPLICITLY STATED TO PRECLUDE CONSIDERATION OF HIM AS A LABOR SURPLUS AREA CONCERN.

WE AGREE WITH THE VIEW TAKEN BY THE CONTRACTING AGENCY THAT THESE DEFICIENCIES ARE MINOR IRREGULARITIES WITHIN THE MEANING OF THE ASPR DEFINITION AND THAT THEY ARE THEREFORE EITHER CURABLE AFTER OPENING OR WAIVABLE. WE NOTE ESPECIALLY THAT THE FAILURE TO FILL OUT THE REQUIRED LABOR SURPLUS AREA INFORMATION CARRIES WITH IT A SPECIFIC PENALTY WHICH IMPLICITLY RECOGNIZES THAT CONSIDERATION OF SUCH A BIDDER'S OFFER IS NOT ENTIRELY PRECLUDED BY SUCH FAILURE.

THEREFORE, WE WOULD REGARD JONES AS A RESPONSIVE BIDDER AND AWARD TO THAT CONCERN WOULD BE PROPER IF JONES IS DETERMINED TO BE THE OTHERWISE LOWEST RESPONSIBLE, RESPONSIVE BIDDER.

YOU STATE THT LIBERTY DID NOT ACKNOWLEDGE THE AMENDMENT AND DID NOT INSERT BID PRICES ON THE AMENDED PAGE PROVIDED BY THE AMENDMENT. WE HAVE NOTED PREVIOUSLY THAT PARAGRAPH 4 OF STANDARD FORM 33A AUTHORIZES 3 ALTERNATE METHODS OF ACKNOWLEDGING INVITATION AMENDMENTS. THE RECORD SHOWS THAT THE SECOND ALTERNATE (ACKNOWLEDGMENT ON THE REVERSE OR SECOND PAGE OF STANDARD FORM 33) WAS EMPLOYED HERE. ALTHOUGH LIBERTY IN ITS ACKNOWLEDGMENT REFERRED TO THE AMENDMENT AS NUMBER "ONE," THERE WAS ONLY ONE AMENDMENT HERE AND IT IS THEREFORE QUITE CLEAR THAT LIBERTY WAS REFERRING TO THE AMENDMENT WHICH THE MARINE CORPS FORMALLY DESIGNATED AS NUMBER M67001-69-B-0026-P0006.

THE RECORD REVEALS THAT, CONTRARY TO YOUR SECOND ALLEGATION, LIBERTY SUBMITTED ITS BID ON THE AMENDED PAGE, WHICH WAS INTERLEAVED WITH THE ORIGINAL BID FORM. MOREOVER, THE FACT THAT THE RECORD SHOWS THAT LIBERTY RECEIVED AND CONSIDERED THE AMENDMENT WOULD BRING THIS BID WITHIN THE RULE WE REFERRED TO IN OUR DISCUSSION OF THE JONES' BID. IN SUCH CIRCUMSTANCES, A FAILURE TO ACKNOWLEDGE AN AMENDMENT IN THE USUAL FORM WILL NOT REQUIRE REJECTION OF THE BID AS NONRESPONSIVE BUT MAY BE WAIVED.

FOR THE ABOVE REASONS, LIBERTY'S BID APPEARS TO BE OTHERWISE RESPONSIVE TO THE INVITATION.

YOU CONTEND THAT SELLERS' BID IS NONRESPONSIVE FOR TWO REASONS: (1) FAILURE TO ACKNOWLEDGE THE AMENDMENT; AND (2) FAILURE TO BID ON ALL ITEMS SPECIFIED. HOWEVER, THE RECORD CONCLUSIVELY DEMONSTRATES THAT SELLERS ACKNOWLEDGED THE AMENDMENT IN THE FORM AND MANNER REQUIRED BY THE INVITATION.

THE BID PRICES WERE ENTERED BY SELLERS ON THE UNAMENDED ALTERNATES "A" AND "B.' HOWEVER, WHAT WE HELD ABOVE WITH RESPECT TO THE GOLDSBORO BID IS EQUALLY APPLICABLE HERE. WE THEREFORE DO NOT CONSIDER SELLERS' FAILURE TO BID ON AMENDED ALTERNATE "B" AS RENDERING ITS BID NONRESPONSIVE TO THE INVITATION.

YOUR ALLEGATION THAT NONE OF THESE FOUR BIDDERS IS COMPETENT TO PERFORM THIS CONTRACT IS PREMATURE SINCE THE PREAWARD SURVEY REPORTS HAVE NOT BEEN MADE. IN ANY EVENT, A DETERMINATION OF RESPONSIBILITY IS THE PROPER FUNCTION OF THE CONTRACTING AGENCY AND NOT OF THIS OFFICE.

CONCERNING YOUR SUSPICION THAT ONE OR MORE OF THESE FOUR BIDDERS IS NOT PRESENTLY COMPLYING WITH THE MINIMUM-WAGE PROVISIONS OF THE FAIR LABOR STANDARDS ACT, IF SUCH IS THE FACT, PRESUMABLY IT WILL BE DISCLOSED IN THE PREAWARD SURVEY REPORTS AS AN ELEMENT OF RESPONSIBILITY AS DISTINGUISHED FROM THE RESPONSIVENESS OF THE BIDS TO THE ADVERTISED SPECIFICATIONS.