B-165670, FEB. 24, 1969

B-165670: Feb 24, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THIS PROTEST WAS THE SUBJECT OF A REPORT DATED DECEMBER 16. THE INVITATION WAS ISSUED OCTOBER 11. BIDS WERE OPENED AS SCHEDULED AND THREE BIDS WERE FOUND TO HAVE BEEN SUBMITTED. THE LORMACK CORPORATION WAS LOW BIDDER AT $266. 904 WAS SECOND LOW AND J-AND-B CONSTRUCTION COMPANY BID $333. CONSIDERATION OF THE LOW BID IS PROTESTED ON THE GROUND THAT LORMACK DID NOT SUBMIT WITH ITS BID THE REQUIRED ADDENDUM SIGNIFYING ACCEPTANCE OF THE MODIFICATIONS IN THE TIMELY MANNER PRESCRIBED BY THE ADDENDUM. THE RECORDS FORWARDED TO OUR OFFICE SHOW THAT ADDENDUM NO. 1 WAS SENT TO ALL THREE BIDDERS ON NOVEMBER 6. IT IS REPORTED THAT LORMACK ATTRIBUTES ITS FAILURE TO ACKNOWLEDGE THE ADDENDUM TO THE FACT THAT THE ADDENDUM WAS MAILED TO AN OLD ADDRESS IN WASHINGTON.

B-165670, FEB. 24, 1969

TO MAYOR WASHINGTON:

WE REFER AGAIN TO A PROTEST ON BEHALF OF WILLIAM F. KLINGENSMITH, INCORPORATED, AGAINST THE ANTICIPATED AWARD OF A CONTRACT TO LORMACK CORPORATION, UNDER INVITATION FOR BIDS NO. C-6966-B. THIS PROTEST WAS THE SUBJECT OF A REPORT DATED DECEMBER 16, 1968, FROM THE DIRECTOR OF BUILDINGS AND GROUNDS.

THE INVITATION WAS ISSUED OCTOBER 11, 1968, FOR THE CONSTRUCTION OF A SWIMMING POOL AT FORT DUPONT PARK. ADDENDUM NO. 1, ISSUED NOVEMBER 6, 1968, WITH NO EXTENSION OF BID OPENING DATE, MADE CERTAIN CHANGES IN THE SPECIFICATIONS AND INCLUDED A MODIFICATION OF THE PREVAILING WAGE DETERMINATION BY THE SECRETARY OF LABOR UNDER DECISION NO. AI 1,480, DATED OCTOBER 9, 1968.

BIDS WERE OPENED AS SCHEDULED AND THREE BIDS WERE FOUND TO HAVE BEEN SUBMITTED. THE LORMACK CORPORATION WAS LOW BIDDER AT $266,900. THE KLINGENSMITH BID AT $304,904 WAS SECOND LOW AND J-AND-B CONSTRUCTION COMPANY BID $333,000.

CONSIDERATION OF THE LOW BID IS PROTESTED ON THE GROUND THAT LORMACK DID NOT SUBMIT WITH ITS BID THE REQUIRED ADDENDUM SIGNIFYING ACCEPTANCE OF THE MODIFICATIONS IN THE TIMELY MANNER PRESCRIBED BY THE ADDENDUM.

THE RECORDS FORWARDED TO OUR OFFICE SHOW THAT ADDENDUM NO. 1 WAS SENT TO ALL THREE BIDDERS ON NOVEMBER 6, 1968. IN ADDITION, THE CHIEF, ESTIMATES BRANCH, HAS FURNISHED A DETAILED ANALYSIS OF THE WORK AND MATERIAL REQUIRED BY ADDENDUM NO. 1 EVIDENCING HIS OPINION THAT THE ADDITIONAL COST WOULD NOT EXCEED $300.00, OR APPROXIMATELY ONE-TENTH OF ONE PERCENT OF LORMACK'S BID OF $266,900. IN ADDITION, IT IS REPORTED THAT LORMACK ATTRIBUTES ITS FAILURE TO ACKNOWLEDGE THE ADDENDUM TO THE FACT THAT THE ADDENDUM WAS MAILED TO AN OLD ADDRESS IN WASHINGTON, D.C., AND WAS NOT RECEIVED AT ITS NEW ADDRESS IN UPPER MARLBORO, MARYLAND, UNTIL APPROXIMATELY 2:30 P.M., NOVEMBER 12, 1968, OR ONE-HALF HOUR BEFORE BID OPENING. IT IS ALSO STATED THAT THE ADDENDUM WOULD NOT ALTER LORMACK'S BID PRICE.

THE GENERAL RULE AS TO THE EFFECT OF THE FAILURE OF A BIDDER TO ACKNOWLEDGE AN ADDENDUM TO AN INVITATION FOR BIDS IS THAT WHEN THE ADDENDUM AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE BIDDER'S FAILURE TO ACKNOWLEDGE THE ADDENDUM IN COMPLIANCE WITH THE TERMS OF THE INVITATION OR ADDENDUM CANNOT BE WAIVED. 37 COMP. GEN. 785. THE BASIS FOR THE GENERAL RULE IS THE PRINCIPLE THAT THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION, AS AMENDED, WOULD BE PREJUDICIAL TO OTHER BIDDERS. CLARIFICATION OF THE BID AFTER OPENING MAY NOT BE PERMITTED BECAUSE THE BIDDER IN SUCH CIRCUMSTANCES WOULD HAVE THE OPTION TO DECIDE TO BECOME ELIGIBLE BY FURNISHING EXTRANEOUS EVIDENCE THAT THE ADDENDUM HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. 44 COMP. GEN. 753; 41 COMP. GEN. 550 AND DECISIONS CITED THEREIN.

THE ONLY VARIATIONS OR DEFECTS THAT MAY BE WAIVED OR PERMITTED TO BE CURED AS MINOR INFORMALITIES OR IRREGULARITIES ARE THOSE WHICH RELATE MERELY TO FORM, RATHER THAN SUBSTANCE, OR WHICH HAVE ONLY A NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE SUPPLIES OR SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT, EVEN THOUGH THE BIDDER MAY BE IN NO WAY RESPONSIBLE FOR SUCH FAILURE, MAY BE WAIVED OR CORRECTED ONLY IF THE CHANGES MADE BY THE AMENDMENT MEET THE ABOVE TESTS OF TRIVIALITY, OR IF THE BID AS SUBMITTED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT AND AGREES TO THE TERMS THEREOF. SEE, FOR EXAMPLE, SECTION 1- 2.405 (D) OF THE FEDERAL PROCUREMENT REGULATIONS AND SECTION 2-405 (IV) OF THE ARMED SERVICES PROCUREMENT REGULATION. WE HAVE NEVER APPROVED WAIVER IN SUCH CIRCUMSTANCES AS ARE HERE PRESENT WHERE THE MAXIMUM POSSIBLE AMOUNT OF DEVIATION WAS AS MUCH AS $200.00. SEE OUR REVIEW OF THE RULE IN 44 COMP. GEN. 753, A COPY OF WHICH IS ENCLOSED.

IN ACCORDANCE WITH SECTION 1 OF THE DAVIS BACON ACT, 40 U.S.C. 276A, THE INVITATION CONTAINED CERTAIN MINIMUM WAGE REPRESENTATIONS AND STIPULATIONS. SINCE THE WAGE RATES PAYABLE UNDER A CONTRACT DIRECTLY AFFECT THE CONTRACT PRICE, THERE CAN BE NO QUESTION THAT THE INVITATION PROVISION REQUIRING THE PAYMENT OF MINIMUM WAGES PRESCRIBED BY THE SECRETARY OF LABOR WAS A MATERIAL REQUIREMENT OF THE INVITATION AS AMENDED. AS STATED PREVIOUSLY, THE ADDENDUM CONTAINED A MODIFICATION OF THE WAGE RATE SCHEDULE ISSUED BY THE LABOR DEPARTMENT AS WAGE RATE MODIFICATION THREE WHICH SUPPLEMENTS AND MODIFIES DECISION NO. AI 1,480, A PART OF THE INVITATION SPECIFICATIONS. WHILE IT IS INDICATED IN THE ADMINISTRATIVE REPORT THAT THE WAGE RATES UNDER THE ADDENDUM ARE ALREADY UNDERSTOOD TO BE CURRENT, AND THEREFORE, NOT COMPUTED IN THE ADDED COST OF THE ADDENDUM; WE NOTE THAT SEVERAL SPECIFIED OCCUPATIONS ARE GIVEN INCREASED MINIMUM HOURLY RATES. IT IS OUR VIEW THAT A BIDDER WHO FAILS TO INDICATE BY ACKNOWLEDGMENT OF THE ADDENDUM OR OTHERWISE THAT HE HAD CONSIDERED THE WAGE SCHEDULE AS MODIFIED COULD NOT, WITHOUT HIS CONSENT, BE REQUIRED TO PAY WAGE RATES WHICH WERE PRESCRIBED THEREIN BUT WHICH WERE NOT SPECIFIED IN THE ORIGINAL INVITATION, NOTWITHSTANDING THAT HE MIGHT ALREADY BE PAYING THE SAME OR HIGHER WAGE RATES TO HIS EMPLOYEES UNDER OTHER ARRANGEMENTS. FURTHERMORE, TO AFFORD A BIDDER AN OPPORTUNITY AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE WAGE SCHEDULE AS MODIFIED WOULD BE UNFAIR TO THE OTHER BIDDERS WHOSE BIDS CONFORMED TO THE REQUIREMENTS OF THE AMENDED INVITATION AND WOULD BE CONTRARY TO THE PURPOSE OF THE PUBLIC PROCUREMENT STATUTES. B-157832, NOVEMBER 9, 1965; B-149315, AUGUST 28, 1962; B-146354, NOVEMBER 27, 1961.

ACCORDINGLY, WE CONCLUDE THAT AN AWARD MAY NOT VALIDLY BE MADE TO LORMACK CORPORATION. WE WISH ALSO TO CALL TO YOUR ATTENTION THE SUPPLEMENTAL INSTRUCTIONS TO BIDDERS CLAUSE WHICH REQUIRES THAT COPIES OF ADDENDA WILL BE MAILED TO ALL BIDDERS NOT LATER THAN FIVE DAYS BEFORE DATE OF OPENING OF BIDS. IN THE INSTANT CASE, WHILE FIVE DAYS WERE ALLOWED, A SUNDAY AND A HOLIDAY WERE INCLUDED. YOU MAY WISH TO REVIEW THIS MATTER TO ALLOW A MINIMUM OF FIVE WORKING DAYS BETWEEN ISSUANCE OF ADDENDA AND THE DATE OF OPENING OF BIDS.