B-167495, SEPTEMBER 2, 1969, 49 COMP. GEN. 147

B-167495: Sep 2, 1969

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AMENDMENT CANCELED UNDER AN INVITATION FOR COLLAPSIBLE FABRIC TANKS THAT WAS AMENDED TO INCREASE THE TOTAL UNITS. THE CANCELLATION OF THE AMENDMENT WAS PROPER WHERE THE AMENDMENT ACKNOWLEDGMENT BY THE SUCCESSFUL BIDDER HAD NOT BEEN PRICED OR RELATED TO THE DECREASED PRICE AND THE BID PRICES ON THE ONLY ACKNOWLEDGMENT OF THE AMENDMENT RECEIVED WERE UNREASONABLE. THE BID SUBMITTED IN THE ORIGINAL SOLICITATION AND WHICH HAD NOT BEEN WITHDRAWN COULD NOT AND DID NOT BECOME INVALID BECAUSE A BID WAS NOT SUBMITTED ON THE ADDITIONAL QUANTITY. UNPRICED THE FAILURE OF BIDDERS IN ACKNOWLEDGING AMENDMENTS TO AN INVITATION TO PRICE THE INCREASED QUANTITIES SOLICITED BY THE AMENDMENT MAY HAVE BEEN DUE TO THE FORM OF THE AMENDMENT WHICH NEITHER PROVIDED SPACE FOR THE INSERTION OF PRICES NOR CALLED FOR PRICES ON THE ADDITIONAL ITEMS.

B-167495, SEPTEMBER 2, 1969, 49 COMP. GEN. 147

CONTRACTS -- AWARDS -- ORIGINAL SOLICITATION AMENDED -- AMENDMENT CANCELED UNDER AN INVITATION FOR COLLAPSIBLE FABRIC TANKS THAT WAS AMENDED TO INCREASE THE TOTAL UNITS, AN AWARD OF A CONTRACT FOR THE ORIGINAL QUANTITY SOLICITED ON THE BASIS OF A PRICE REDUCTION RECEIVED PRIOR TO THE ISSUANCE OF THE AMENDMENT, AND THE CANCELLATION OF THE AMENDMENT WAS PROPER WHERE THE AMENDMENT ACKNOWLEDGMENT BY THE SUCCESSFUL BIDDER HAD NOT BEEN PRICED OR RELATED TO THE DECREASED PRICE AND THE BID PRICES ON THE ONLY ACKNOWLEDGMENT OF THE AMENDMENT RECEIVED WERE UNREASONABLE. THE BID SUBMITTED IN THE ORIGINAL SOLICITATION AND WHICH HAD NOT BEEN WITHDRAWN COULD NOT AND DID NOT BECOME INVALID BECAUSE A BID WAS NOT SUBMITTED ON THE ADDITIONAL QUANTITY, AS THE SOLICITATION AND AMENDMENT PERMITTED A BID TO BE SUBMITTED ON ALL OR ANY PART OF THE QUANTITIES INVOLVED, AND AWARD OF A CONTRACT IN QUANTITIES LESS THAN STATED IN THE SOLICITATION. CONTRACTS -- SPECIFICATIONS -- ADDENDA ACKNOWLEDGMENT -- UNPRICED THE FAILURE OF BIDDERS IN ACKNOWLEDGING AMENDMENTS TO AN INVITATION TO PRICE THE INCREASED QUANTITIES SOLICITED BY THE AMENDMENT MAY HAVE BEEN DUE TO THE FORM OF THE AMENDMENT WHICH NEITHER PROVIDED SPACE FOR THE INSERTION OF PRICES NOR CALLED FOR PRICES ON THE ADDITIONAL ITEMS. AVOID A REOCCURRENCE OF THE SITUATION, FUTURE AMENDMENTS SHOULD BE FORMULATED TO LEAVE NO DOUBT AS TO WHAT IS REQUIRED.

TO RUBBER FABRICATORS INCORPORATED, SEPTEMBER 2, 1969:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 11, 1969, WITH ENCLOSURE, PROTESTING THE FAILURE TO AWARD THE TOTAL PROCUREMENT TO RUBBER FABRICATORS, INCORPORATED, UNDER SOLICITATION NO. DSA700-69-B-3237, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

THE SOLICITATION WAS ISSUED ON APRIL 21, 1969, INVITING BIDS ON ITEM 1 WHICH CONSISTED OF 30 EACH COLLAPSIBLE FABRIC TANKS, 3,000 GALLON CAPACITY, FSN 5430-835-3351, AND ITEM 2 COVERING DATA FOR ITEM 1. THE INVITATION INVITED BIDS ON THE BASIS OF DELIVERY F.O.B. PORT HUENEME, CALIFORNIA. ON MAY 2, 1969, AMENDMENT NO. 1 WAS ISSUED MODIFYING THE SPECIFICATIONS TO PERMIT USE OF PRECURED FABRIC AND PRESSED SEAM CONSTRUCTION. ON MAY 9, 1969, AMENDMENT NO. 2 WAS ISSUED TO EXTEND THE CLOSING DATE TO MAY 29, 1969. AMENDMENT NO. 3 WAS ISSUED ON MAY 19, 1969, AMENDING THE SOLICITATION BY ADDING ITEM 3 CALLING FOR THE DELIVERY OF 24 TANKS, F.O.B. DAVISVILLE, RHODE ISLAND, ITEM 4 FOR 32 TANKS, F.O.B. GULFPORT, MISSISSIPPI, ITEM 5 FOR 64 TANKS, F.O.B. PORT HUENEME, CALIFORNIA, AND ITEM 6 COVERING DATA FOR THESE ITEMS.

BIDS RECEIVED IN RESPONSE TO THE SOLICITATION WERE OPENED ON MAY 29, 1969. ALL BIDDERS WITH THE EXCEPTION OF ONE FAILED TO PRICE THE AMENDMENT COVERING THE 120 ADDITIONAL TANKS, ALTHOUGH ALL BIDDERS ACKNOWLEDGED RECEIPT OF THE AMENDMENT.

BY TELEGRAM DATED MAY 15, 1969, RUBBER FABRICATORS REDUCED THE UNIT PRICE OF ITEM 1 BY $298 AND DELETED THE PRICE PREVIOUSLY ENTERED FOR ITEM 2, STATING THAT ITEM 2 WOULD BE SUPPLIED AT NO CHARGE. THE CONTRACTING OFFICER CONSIDERED THAT THE BID OF RUBBER FABRICATORS COVERED ONLY ITEMS 1 AND 2. AWARD WAS MADE TO RUBBER FABRICATORS ON ITEMS 1 AND 2 ON JUNE 30, 1969. THE CONTRACTING OFFICER ALSO REPORTS THAT SINCE THE BID FROM THE ONLY FIRM PRICING ITEMS 3,4,5, AND 6 WAS APPROXIMATELY $300 HIGHER PER UNIT THAN THAT OFFERED BY RUBBER FABRICATORS FOR ITEM 1, IT WAS DETERMINED THAT ITEMS 3,4,5, AND 6 SHOULD BE CANCELED BECAUSE OF UNREASONABLE PRICES, AND THAT THESE ITEMS SHOULD BE RESOLICITED.

IT IS YOUR CONTENTION THAT SINCE AMENDMENT NO. 3 CHANGED ONLY THE NUMBER OF UNITS REQUIRED, AND YOU INTENDED NO CHANGE IN PRICE, THERE WAS NO ACTION REQUIRED ON YOUR PART TO REGISTER A BID ON THE ADDITIONAL QUANTITY OTHER THAN TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT. IN SUPPORT OF YOUR POSITION YOU CITE THE PROVISION IN EACH AMENDMENT STATING THAT "FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER." YOU ALSO CITE PARAGRAPH 7 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH PROVIDES THE METHOD FOR MODIFYING BIDS OR OFFERS. IN ADDITION YOU CITE A NUMBER OF OUR DECISIONS IN SUPPORT OF YOUR POSITION THAT YOUR UNIT PRICE OFFER ON ITEM 1 IS APPLICABLE TO ITEMS 3,4, AND 5, BY THE MERE ACKNOWLEDGMENT OF AMENDMENT NO. 3.

YOUR REFERENCE TO DECISION B-152232, OCTOBER 21, 1963, IS NOT WELL TAKEN SINCE THIS DECISION CONCERNED "LATE" TELEGRAPHIC MODIFICATIONS. THE ACKNOWLEDGMENT OF THE AMENDMENT SPECIFICALLY STATED THE UNIT PRICE AND TOTAL PRICE OF THE ADDITIONAL ITEMS.

IN DECISION B-153262, FEBRUARY 19, 1964, WE STATED:

*** WE DO NOT AGREE THAT AN ADDENDUM WHICH ADDS AN ITEM TO AN INVITATION FOR BIDS MAY BE CONSIDERED AS REQUIRING ONLY THAT THE BIDDER ACKNOWLEDGE ITS RECEIPT IN ORDER TO MAKE HIS BID FULLY RESPONSIVE TO THE AMENDED INVITATION, ASSUMING THAT THE BIDDER HAS QUOTED PRICES FOR AND TAKEN NO EXCEPTION TO THE REQUIREMENTS OF THE ORIGINAL ITEM OF THE INVITATION.

DECISION 36 COMP. GEN. 259, DATED OCTOBER 1, 1956, IS NOT RELEVANT SINCE IT CONCERNED THE EVALUATION OF A BID THAT CONTAINED A CONDITION AS TO THE NUMBER OF RADIOGRAPHS TO BE FURNISHED AND THE ADJUSTMENT OF PRICE TO BE MADE IN THE EVENT A GREATER OR LESSER NUMBER SHOULD BE REQUIRED.

YOUR FOURTH CITED DECISION 48 COMP. GEN. 757, MAY 27, 1969, WHILE RESEMBLING YOUR SITUATION, IS EASILY DISTINGUISHED. IN THIS CASE THE BIDDER INSERTED IN THE PRICE COLUMN, BESIDE THE ITEMS, THE MARK " --- ." WE HELD THAT:

ABSENT A SPECIFIC REQUIREMENT THAT IF AN ITEM IS TO BE FURNISHED AT NO COST IT SHOULD BE STATED IN SO MANY WORDS (SEE B-165549, FEBRUARY 12, 1969), WE DO NOT THINK THAT THE RENICK BID WAS NONRESPONSIVE PER SE BECAUSE OF THE "--- " NEXT TO THE DATA ITEMS.

THE ENTRY OF A " --- " IS CERTAINLY LESS CLEAR AN INDICATION OF INTENT THAN EITHER A DOLLAR PRICE ENTRY OR A STATEMENT LIKE "NO CHARGE." BUT IT IS A MORE MEANINGFUL EXPRESSION OF INTENT THAN A MERE BLANK SPACE. HE " - -- ," IT SEEMS TO US, SHOWS TWO THINGS. FIRST, THE BIDDER WAS AWARE OF THE NECESSITY TO INSERT SOMETHING NEXT TO THE ITEM; IN OTHER WORDS, THE BIDDER HAD NOT OVERLOOKED THE ITEM. SECOND, AFTER CONSIDERING THE MATTER, THE BIDDER DECIDED NOT TO INSERT A PRICE FOR THE ITEM. THE AFFIRMATIVE COROLLARY IS THAT THE BIDDER OBLIGATED ITSELF TO FURNISH THE DATA WITHOUT COST TO THE GOVERNMENT. THEREFORE, WHILE THERE IS NO EXPLICIT INDICATION THAT THE DATA WAS TO BE SUPPLIED AT NO COST, THE BIDDER'S INTENT TO DO SO WAS CLEAR AND THE FAILURE TO STATE THIS INTENT IN A MORE POSITIVE FASHION DID NOT RENDER THE BID NONRESPONSIVE.

IN YOUR CASE, HOWEVER, NO INDICATION OR AFFIRMATIVE ACTION WAS MADE OR TAKEN OTHER THAN ACKNOWLEDGMENT OF THE AMENDMENT. THREE ALTERNATIVES WERE THUS PRESENTED: (1) AS YOU SUGGEST, THE BID WAS MODIFIED TO SUPPLY NOT ONLY THE TANKS FOR ITEM 1, BUT ALSO FOR ITEMS 3,4, AND 5, PLUS DATA ITEM 6, AT THE UNIT PRICE STATED FOR ITEM 1; (2) AT THE OTHER EXTREME, THAT YOU WOULD SUPPLY ALL ITEMS FOR THE AGGREGATE PRICE STATED FOR ITEM 1; AND (3) THE VIEW OF THE CONTRACTING OFFICER, THAT YOU ACKNOWLEDGED RECEIPT OF THE AMENDMENT BUT THAT YOU WERE ONLY INTERESTED IN BIDDING ON ITEMS 1 AND 2. THE FIRST AND SECOND ALTERNATIVES CANNOT BE CONSIDERED REASONABLE SINCE NO AFFIRMATIVE ACTION WAS TAKEN TO RELATE THE UNIT PRICE OR AGGREGATE PRICE OF ITEMS 1 AND 2 TO THE ADDITIONAL ITEMS 3,4,5, AND 6. THE CONTRACTING OFFICER'S INTERPRETATION IS REASONABLE AND CONSISTENT WITH PROVISIONS OF THE SOLICITATION.

THE BID SUBMITTED IN THE ORIGINAL SOLICITATION AND NOT WITHDRAWN (ITEMS 1 AND 2) COULD NOT AND DID NOT BECOME INVALID BECAUSE YOU DID NOT SUBMIT A BID ON THE ADDITIONAL QUANTITIES IN ITEMS 3,4,5, AND 6, SINCE THE SOLICITATION AND AMENDMENTS PERMITTED A BID ON ALL OR ANY PART OF THE QUANTITIES INVOLVED, AND AWARD BY THE CONTRACTING OFFICER IN QUANTITIES LESS THAN STATED IN THE SOLICITATION.

IN VIEW OF THE ABOVE, YOUR PROTEST MUST BE DENIED.

WE HAVE NOTED THAT ALL BUT ONE OF THE OTHER OFFERORS ALSO FAILED TO PRICE THE AMENDMENTS. THIS FAILURE MAY WELL HAVE BEEN DUE TO THE FORM OF AMENDMENT NO. 3 WHICH PROVIDED NO SPACE FOR THE INSERTION OF PRICES, NOR DID IT SPECIFICALLY CALL FOR PRICES ON THE ADDITIONAL ITEMS TO BE SET OUT IN THE BID FORM. WE THINK THIS SITUATION COULD HAVE BEEN PREVENTED BY SO FORMULATING THE AMENDMENT AS TO LEAVE NO DOUBT ABOUT WHAT WAS REQUIRED. WE ARE CALLING THIS SITUATION TO THE ATTENTION OF THE CONTRACTING AGENCY TO PRECLUDE ANY RECURRENCE.