B-166530, JUL. 3, 1969

B-166530, JUL. 3, 1969

TO FIRE DETECTION SERVICE, INC.:

ON MARCH 26, 1969, YOU PROTESTED AGAINST REJECTION OF YOUR LOW BID ON PROJECT NO. 4-1181, WHICH WAS TO OBTAIN FIRE PROTECTION IMPROVEMENTS AT THE FEDERAL BUILDING, RICHLAND, WASHINGTON. THE IFB CONTAINED A PAGE HEADED "SECTION 3, APPLICABLE MINIMUM HOURLY RATES OF WAGES," ON WHICH IT WAS STATED "THIS SECTION TO BE ISSUED AT A LATER DATE BY AMENDMENT.' ADDITIONALLY GENERAL SERVICES ADMINISTRATION (GSA) FORM 1903, NOTICE TO BIDDERS WARNED BIDDERS TO ACKNOWLEDGE RECEIPT OF ALL AMENDMENTS. ON MARCH 5, 1969, AMENDMENT NO. 1, ENTITLED "APPLICABLE MINIMUM HOURLY RATES OF GES,"WAS MAILED TO ALL BIDDERS, INCLUDING YOUR CONCERN, ACCORDING TO DOCUMENTATION FORWARDED TO OUR OFFICE FROM GSA. NEVERTHELESS, YOUR BID FAILED TO ACKNOWLEDGE RECEIPT OF THIS AMENDMENT, AND GSA THEREFORE REJECTED IT AS NONRESPONSIVE, EVEN THOUGH IT CONTAINED THE LOWEST PRICE RECEIVED. AWARD WAS THEN MADE TO THE SECOND LOWEST BIDDER, FIRE PREVENTION SYSTEMS, INC., WHICH HAD ACKNOWLEDGED THE AMENDMENT.

ACCORDING TO YOUR OFFICE RECORDS THE SUBJECT AMENDMENT WAS NEVER RECEIVED. IN VIEW THEREOF, AND SINCE YOUR PAY SCALE EXCEEDS THE WAGE RATES ESTABLISHED IN THE AMENDMENT, YOU APPARENTLY MAINTAIN THAT YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD BE REGARDED AS A MINOR IRREGULARITY PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.405, QUOTED IN PERTINENT PART AS FOLLOWS:

"SEC. 1-2.405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS.

A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE IRREGULARITIES INCLUDE:

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

(1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID THEREON; OR

(2) THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.' YOU ALSO MAINTAIN THAT INSUFFICIENT TIME WAS ALLOWED FOR CONSIDERATION OF THE AMENDMENT, EVEN IF YOU HAD RECEIVED IT.

IN ACCORD WITH THE ABOVE-CITED REGULATION OUR OFFICE HAS HELD THAT A BIDDER'S FAILURE TO ACKNOWLEDGE AN ADDENDUM TO AN IFB AFFECTING THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT REQUIRES REJECTION OF HIS OFFER, EVEN THOUGH THE BIDDER MAY NOT BE RESPONSIBLE FOR SUCH FAILURE, SINCE IT WOULD BE PREJUDICIAL TO OTHER BIDDERS TO CONFER AN OPTION ON SUCH BIDDER AFTER BID OPENING OF FURNISHING EVIDENCE THAT THE ADDENDUM HAS BEEN CONSIDERED, AND BECOMING ELIGIBLE FOR AWARD, OR TO AVOID AWARD BY REMAINING SILENT. 44 COMP. GEN. 753.

IN THE INSTANT CASE, SINCE THE IFB CLEARLY ADVISED ALL BIDDERS THAT SUCH RATES WOULD BE FURNISHED UNDER AN APPROPRIATE AMENDMENT, AND ALL ADDENDA WERE TO BE ACKNOWLEDGED BEFORE BID SUBMISSION, WE BELIEVE THERE WAS A RESPONSIBILITY UPON ANY BIDDER WHO HAD NOT RECEIVED SUCH RATES TO MAKE INQUIRY BEFORE SUBMITTING A BID. IN VIEW THEREOF, AND SINCE THE WAGE RATES PAYABLE UNDER THE CONTRACT AS STATED IN AMENDMENT NO. 1 COULD SUBSTANTIALLY AFFECT THE COST OF PERFORMING THE CONTRACT, AND ANY BIDDER WHO FAILED TO ACKNOWLEDGE SUCH ADDENDUM COULD NOT BE REQUIRED TO PAY WAGE RATES WHICH WERE PRESCRIBED THEREIN, NOTWITHSTANDING THAT HE MIGHT BE PAYING HIGHER WAGE RATES TO HIS EMPLOYEES UNDER OTHER AGREEMENTS, WE CANNOT CONCLUDE THAT GSA'S REJECTION OF YOUR BID WAS IMPROPER. B-157832, NOVEMBER 9, 1965.

ADDITIONALLY, WE CANNOT MAINTAIN THAT INSUFFICIENT TIME WAS ALLOWED FOR CONSIDERATION OF THE AMENDMENT IN VIEW OF YOUR ADMISSION THAT YOUR BID WAS PREPARED ON THE BASIS OF A PAY SCALE IN EXCESS OF THE RATES SET FORTH IN THE AMENDMENT.

FOR THE REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED. HOWEVER, GSA HAS ADVISED US THAT IT PLANS TO SOLICIT THE VIEWS OF THE MEMBERS OF THE INTERAGENCY PROCUREMENT POLICY COMMITTEE ON THE FEASIBILITY OF YOUR SUGGESTION THAT ALL AMENDMENTS BE SENT BY REGISTERED MAIL.