B-168743, MAR. 20, 1970

B-168743, MAR. 20, 1970

CONTRACTS--SPECIFICATIONS--FAILURE TO FURNISH SOMETHING REQUIRED-- ADDENDA ACKNOWLEDGMENT--NONRECEIPT OF ADDENDA LOW BIDDER FOR JANITORIAL SERVICES WHO FAILED TO ACKNOWLEDGE INVITATION AMENDMENT WHICH INCREASED MAN-HOUR REQUIREMENTS BY 1,396 HOURS BUT EXCLUDED MAN-HOURS FOR TRASH REMOVAL IS DENIED PROTEST SINCE BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT PRIOR TO BID OPENING RENDERS BID NONRESPONSIVE WHERE SUCH AMENDMENT AFFECTS PRICE, QUANTITY OR QUALITY AND BECAUSE AMENDMENT ADDED 96 MAN-HOURS NOT PREVIOUSLY REQUIRED AND REPRESENTS WORK WHICH GOVT. COULD NOT REQUIRE BIDDER TO PERFORM WITHOUT AMENDMENT ACKNOWLEDGMENT, EVEN THOUGH BID WAS RESPONSIVE TO ORIGINAL INVITATION, IT WAS NOT RESPONSIVE TO AMENDED REQUIREMENTS. SEE COMP. GEN. DECS. CITED.

TO NASH JANITORIAL SERVICE, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 29, 1969, TO THE GENERAL SERVICES ADMINISTRATION, REGION 7, A COPY OF WHICH WAS SENT TO OUR OFFICE, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. GS-07B-8161, ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR JANITORIAL SERVICES FOR THE PERIOD FEBRUARY 1, 1970, THROUGH JANUARY 31, 1971, AT THE UNITED STATES COURTHOUSE AND FEDERAL OFFICE BUILDING AND THE UNITED STATES POST OFFICE AND COURTHOUSE BUILDING, OKLAHOMA CITY, OKLAHOMA.

THE INVITATION WAS ISSUED NOVEMBER 26, 1969, WITH SCHEDULED OPENING ON DECEMBER 18, 1969. ON DECEMBER 5, 1969, DUE TO A CHANGE IN REQUIREMENTS, AN AMENDMENT TO THE INVITATION WAS ISSUED DELETING PARAGRAPHS 1 AND 2 OF PART IV A, ENTITLED "MINIMUM MAN-HOUR REQUIREMENTS, AND SUBSTITUTING NEW APPLICABLE MINIMUM MAN-HOUR SCHEDULE REQUIREMENTS FOR DAY AND NIGHT WORK DURING WEEKDAYS, WEEKENDS AND HOLIDAYS. IN ADDITION, MAN-HOURS REQUIRED FOR REMOVAL OF RUBBISH FROM THE BUILDINGS WERE TO BE EXCLUDED FROM THE SPECIFIED MAN-HOURS SCHEDULED FOR THE ABOVE PERIODS.

THE ADMINISTRATIVE REPORT STATES THAT THE AMENDMENT TO THE INVITATION WAS SENT TO YOU ON DECEMBER 5, 1969, AND THAT ON THAT SAME DATE, AT YOUR REQUEST, AN ADDITIONAL COPY OF THE INVITATION INCLUDING THE AMENDMENT WAS SENT TO YOU BY THE REGIONAL BUSINESS SERVICE CENTER OF THE GSA. YOUR ORIGINAL BID WAS RECEIVED BY BID OPENING BUT IT DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENT AS REQUIRED BY PARAGRAPH 4 OF THE "BIDDING INSTRUCTIONS, TERMS AND CONDITIONS" (GSA) FORM 1467A, ATTACHED TO THE INVITATION, WHICH STATES IN PART:

"* * * RECEIPT OF AMENDMENTS BY A BIDDER MUST BE ACKNOWLEDGED ON THE BID OR BY LETTER OR TELEGRAM RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. * * *"

UNDER THE TERMS OF THE INVITATION AS AMENDED, AN AWARD CAN BE MADE ONLY ON A BASIS OF PROVIDING THE MAN-HOUR REQUIREMENTS SET FORTH IN THE AMENDMENT. HOWEVER, YOUR BID WITHOUT ACKNOWLEDGMENT OF THE AMENDMENT, OFFERS TO FURNISH MAN-HOURS AS SET FORTH IN THE ORIGINAL IFB, AND GSA THEREFORE REJECTED IT AS NONRESPONSIVE, EVEN THOUGH IT CONTAINED THE LOWEST PRICE RECEIVED.

YOU CONTEND THAT YOU DID NOT RECEIVE THE AMENDMENT AND THAT IN ANY CASE THE CHANGES IN THE AMENDMENT WOULD NOT HAVE CAUSED YOUR BID PRICE TO CHANGE. IN ESSENCE, THEREFORE, YOUR POSITION IS 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 ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR 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."

THE AMENDMENT INCREASED THE TOTAL MINIMUM MAN-HOURS PER YEAR REQUIRED UNDER THE CONTRACT BY 1396 HOURS. IT IS ESTIMATED THAT IT WOULD COST THE GOVERNMENT $4,523.04 TO PROVIDE THE ADDITIONAL SERVICES CALLED FOR BY THE AMENDMENT. IT WAS ESTIMATED THAT TRASH REMOVAL WOULD CONSUME 25 MAN-HOURS PER WEEK (OR 1300 MAN-HOURS PER YEAR) AND HOLIDAY SERVICES (NOT REQUIRED UNDER THE IFB BEFORE AMENDMENT) WOULD BE 96 MAN-HOURS A YEAR (12 HOURS A DAY TIMES EIGHT HOLIDAYS).

YOU CONTEND THAT YOUR FIRM DID NOT INCLUDE MAN-HOURS FOR TRASH REMOVAL IN DETERMINING THE MAN-HOURS REQUIRED FOR BID PURPOSES. THE FACT REMAINS, HOWEVER, THAT THE AMENDMENT ADDED 96 MAN-HOURS A YEAR NOT PREVIOUSLY REQUIRED AND REPRESENTS WORK WHICH THE GOVERNMENT COULD NOT REQUIRE YOU TO PERFORM, IF YOU CHOSE NOT TO, WITHOUT YOUR ACKNOWLEDGMENT OF THE AMENDMENT.

IT IS WELL ESTABLISHED THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE WHERE SUCH AMENDMENT, AS HERE, AFFECTS PRICE, QUANTITY OR QUALITY. 37 COMP. GEN. 785 (1958). IN 42 COMP. GEN. 502 (1963), WE STATED THAT A BID SHOULD BE REGARDED AS RESPONSIVE ONLY IF UPON ACCEPTANCE THE GOVERNMENT MAY REQUIRE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE INVITATION WHETHER OR NOT THE CONTRACTOR ELECTS SO TO PERFORM. STATED ABOVE, WE DO NOT BELIEVE THAT THE GOVERNMENT COULD REQUIRE YOU TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS AS AMENDED WITHOUT YOUR ACKNOWLEDGMENT OF THE AMENDMENT. YOUR BID WAS RESPONSIVE TO THE ORIGINAL INVITATION, BUT NOT TO THE REQUIREMENTS AS AMENDED, AND THE CONTRACTING OFFICER WAS WITHOUT LEGAL AUTHORITY TO ACCEPT YOUR BID SINCE THE PROVISIONS OF THE AMENDMENT MATERIALLY AFFECTED THE SERVICES REQUIRED UNDER THE INVITATION.

THE FEASIBILITY OF YOUR SUGGESTION THAT ALL AMENDMENTS SHOULD BE SENT BY CERTIFIED MAIL WAS PRESENTED TO THE GSA IN CONNECTION WITH OUR DECISION, B -166530, JULY 3, 1969. THE SUGGESTION WAS REJECTED ON THE BASIS THAT THE INFREQUENT INSTANCES OF PROBLEMS RESULTING FROM ALLEGED NON-RECEIPT OF AMENDMENTS BY BIDDERS DO NOT WARRANT THE EXPENSE OR ADMINISTRATIVE BURDEN THAT ITS ADOPTION WOULD ENTAIL. SINCE CERTIFIED OR REGISTERED MAIL REQUIRES RECORDING AND ACCOUNTING ENROUTE, IT OFTEN TAKES LONGER TO DELIVER THAN REGULAR MAIL. THIS ADDITIONAL TIME MIGHT CREATE MORE PROBLEMS FOR BIDDERS THAN WOULD BE SOLVED BY THE ADOPTION OF YOUR SUGGESTION.

IT IS REGRETTABLE THAT YOU DID NOT RECEIVE THE AMENDMENT. HOWEVER, AS NOTED ABOVE, GSA RECORDS SHOW THAT THE AMENDMENT WAS MAILED TO YOU ON DECEMBER 5, 1969. IN ANY CASE, FAILURE OF YOUR FIRM TO RECEIVE THE AMENDMENT WOULD NOT JUSTIFY ACCEPTING YOUR BID IN THE CIRCUMSTANCES DESCRIBED. 40 COMP. GEN. 126 (1960). ACCORDINGLY, WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND YOUR PROTEST MUST BE DENIED.