B-166721, MAY 12, 1969

B-166721, MAY 12, 1969

TO THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA:

WE REFER TO YOUR LETTER DATED MAY 1, 1969, CONCERNING CERTAIN LANGUAGE WHICH WAS INCLUDED IN AN INVITATION FOR BIDS ISSUED BY THE VETERANS ADMINISTRATION (VA) HOSPITAL, NEW ORLEANS, ON STANDARD FORM 21, COVERING PROJECTS 17-5105, 17-5106, AND 17-5107. THE LANGUAGE IN QUESTION, WHICH WAS TYPEWRITTEN ON PAGE 2 OF THE BID FORM IN THE PROVISIONS RELATING TO THE ACKNOWLEDGMENT OF IFB AMENDMENTS, READS AS FOLLOWS: "THE BIDDER ALSO ACKNOWLEDGES RECEIPT OF ANY AMENDMENTS AS MAY BE INDICATED BY CERTIFIED MAIL RECORDS OR RECORDS OF TELEGRAPH COMPANY.'

THE LOWEST BIDDER, BRANCH CONSTRUCTION COMPANY (BRANCH), HAD SUBMITTED TO THE VA PRIOR TO THE SCHEDULED TIME OF BID OPENING A BID BEARING THE SIGNATURE OF THE HEAD OF THE BIDDING ORGANIZATION, WHO HAD PREVIOUSLY SIGNED A CERTIFIED MAIL RECEIPT ON FILE WITH THE VA ALSO BEFORE THE SCHEDULED TIME OF BID OPENING, WHICH ACKNOWLEDGED DELIVERY OF AN IFB AMENDMENT. FOR THE REASONS STATED IN OUR DECISION OF TODAY TO THE LAW FIRM OF MILLING, SAAL, SAUNDERS, BENSON AND WOODWARD, ATTORNEYS FOR THE SECOND LOW BIDDER, BARTLEY, INCORPORATED (BARTLEY), WE SUSTAINED AN AWARD TO BRANCH AND DENIED REINSTATEMENT OF AWARD TO BARTLEY. WE ENCLOSE A COPY OF THAT DECISION.

IN YOUR LETTER YOU URGE THAT THE SIGNING OF A CERTIFIED MAIL RECEIPT DOES NOT NECESSARILY MEAN THAT THE AMENDMENT SO ACKNOWLEDGED WAS TAKEN INTO ACCOUNT WHEN THE BIDDER FIGURED HIS BID. FURTHER, YOU ASSERT THAT SHOULD AN AMENDMENT MAKE A MAJOR CHANGE IN A PROJECT, AN UNSCRUPULOUS BIDDER BY OMITTING REFERENCE TO THE AMENDMENT IN HIS BID MIGHT CHANGE HIS POSITION AFTER BID OPENING BY CLAIMING THAT HE EITHER HAD OR HAD NOT TAKEN THE AMENDMENT INTO CONSIDERATION IN FIGURING HIS BID PRICE. YOU SUGGEST, THEREFORE, THAT TO AVOID THE POSSIBILITY OF CONFUSION AND MANIPULATION EACH BIDDER SHOULD ACKNOWLEDGE RECEIPT OF ALL AMENDMENTS BY NUMBER AND DATE IN THE BID FORM WHICH HE SUBMITS ON THE PARTICULAR PROJECT.

AS WE HAVE POINTED OUT IN OUR DECISION, THERE ARE CASES IN WHICH A BID HAS ALREADY BEEN TRANSMITTED TO THE PROCURING OFFICE BEFORE THE RECEIPT OF THE AMENDMENT BY THE BIDDER OR IN WHICH THE BIDDER, EITHER THROUGH OVERSIGHT OR OTHERWISE, HAS NEGLECTED TO REFER TO AN AMENDMENT IN THE BID. IN SUCH CIRCUMSTANCES, IT IS APPARENT THAT SINCE THE BID IS NOT IN THE POSSESSION OF THE BIDDER, IT MAY NOT BE POSSIBLE FOR THE BIDDER TO REQUEST THE RETURN OF THE BID BEFORE THE SCHEDULED OPENING IN ORDER TO MAKE NOTE OF AMENDMENTS THAT HAVE BEEN RECEIVED. IN ADDITION, THERE ARE CASES IN WHICH A BIDDER, WHILE MAKING NO REFERENCE IN HIS BID TO AN AMENDMENT, CLEARLY INDICATES IN HIS BID THAT THE AMENDMENT HAS BEEN CONSIDERED, SUCH AS BIDDING ON AN ITEM ADDED BY AN AMENDMENT, ETC. SUCH CONTINGENCIES ARE COVERED BY THE PROVISIONS OF FPR 1-2.405 (D) (1) AND LANGUAGE SUCH AS APPEARS IN PARAGRAPH 1, STANDARD FORM 22, PERMITTING WRITTEN OR TELEGRAPHIC ACKNOWLEDGMENT OF AMENDMENTS PROVIDED SUCH ACKNOWLEDGMENTS ARE RECEIVED BY THE GOVERNMENT BEFORE THE TIME SET FOR OPENING OF BIDS. ACCORDINGLY, WE DO NOT BELIEVE THAT ANY CHANGE IN SUCH PROCEDURES IS NECESSARY OR DESIRABLE.