B-170290, SEP. 2, 1970

B-170290, SEP. 2, 1970

BID PROTEST -- FAILURE TO ACKNOWLEDGE AMENDMENT DENIAL OF PROTEST AGAINST REJECTION OF BID FOR PROCUREMENT BY U.S. ARMY ELECTRONICS COMMAND. LOW BIDDER WHO FAILED TO ACKNOWLEDGE AMENDMENT WHICH SUBSTANTIALLY AFFECTED THE QUALITY OF THE ITEM AND WOULD RESULT IN A HIGHER PRICED ITEM HAD BID PROPERLY REJECTED AS NONRESPONSIVE.

TO FORWAY INDUSTRIES, INC.:

THIS IS IN REPLY TO YOUR LETTER OF JULY 7, 1970, AND ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO A HIGHER-PRICED BIDDER UNDER INVITATION FOR BIDS DAAB07-70-B-0333, ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

YOUR PROTEST ARISES OUT OF THE FACT THAT YOUR BID WAS REJECTED AND A CONTRACT WAS AWARDED TO A HIGHER BIDDER BECAUSE YOU FAILED TO EXECUTE AND SUBMIT AMENDMENT 0003 TO THE SOLICITATION BEFORE THE TIME SET FOR BID OPENING. THE RECORD SHOWS THAT YOUR COMPANY WAS CONTACTED BY THE GOVERNMENT IMMEDIATELY AFTER BID OPENING ON MAY 22, 1970, IN AN EFFORT TO DETERMINE WHETHER THE AMENDMENT HAD BEEN DELAYED IN THE MAIL AND YOU ADVISED THAT YOU HAD INADVERTENTLY FAILED TO INCLUDE THE AMENDMENT IN THE BID PACKAGE. YOU SUBSEQUENTLY MAILED SIGNED COPIES OF THE AMENDMENT ON MAY 26, 1970.

ESSENTIALLY, IT IS YOUR CONTENTION THAT REJECTION OF YOUR LOW BID WAS NOT IN THE BEST INTEREST OF THE GOVERNMENT OR OF YOUR COMPANY, AND THAT YOUR BID SHOULD HAVE BEEN ACCEPTED PURSUANT TO VARIOUS PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AS DISCUSSED BELOW.

YOU CONTEND THAT YOUR FAILURE TO ACKNOWLEDGE AMENDMENT 0003 IS A MINOR INFORMALITY OR IRREGULARITY WHICH CAN BE WAIVED PURSUANT TO ASPR 2- 405(IV)(B). UNDER THE CITED PROVISION THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT CAN BE WAIVED ONLY IF "THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS

THE RECORD BEFORE US SHOWS THAT THE CONTRACTING OFFICER REQUESTED AND OBTAINED AN EVALUATION OF THE NATURE OF THE CHANGES REQUIRED BY AMENDMENT 0003 FROM KNOWLEDGEABLE TECHNICAL PERSONNEL, AND IT WAS DETERMINED THAT THE MODIFICATION SUBSTANTIALLY AFFECTS THE QUALITY OF THE ITEM REQUIRED AND WOULD RESULT IN A HIGHER PRICED ITEM. YOUR LETTER OF JULY 7, WHEREIN YOU STATE THAT THE AMENDMENT STIPULATES A MAJOR CHANGE IN THE SPECIFICATIONS WHICH WAS REFLECTED IN YOUR BID PRICE, CONFIRMS THIS FINDING.

IN VIEW OF THE NATURE OF THE AMENDMENT INVOLVED, IT IS OBVIOUS THAT YOUR FAILURE TO TIMELY ACKNOWLEDGE ITS RECEIPT CANNOT BE CONSIDERED A MINOR INFORMALITY OR IRREGULARITY UNDER THE ABOVE CITED REGULATION. 47 COMP. GEN. 597 (1968).

YOU ALSO POINT OUT THAT THE STANDARD NOTICE TO BIDDERS CONTAINED IN ASPR 2-306, PERTAINING TO LATE OFFERS AND MODIFICATIONS AND WITHDRAWALS, PROVIDES IN PART FOR THE CONSIDERATION AND ACCEPTANCE AT ANY TIME OF A MODIFICATION OF AN OFFER WHICH MAKES THE TERMS OF AN OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE. THIS PROVISION CLEARLY DOES NOT PERMIT THE ACCEPTANCE OF YOUR LATE ACKNOWLEDGMENT OF AMENDMENT 0003 SINCE YOUR BID AS SUBMITTED PRIOR TO BID OPENING WAS NOT "AN OTHERWISE SUCCESSFUL OFFER" IN THAT IT DID NOT PROPOSE TO OFFER AN ITEM IN CONFORMANCE WITH THE SOLICITATION REQUIREMENTS STATED IN AMENDMENT 0003.

YOU ALSO CONTEND THAT YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD BE CONSIDERED AS A MISTAKE IN BID, AND SHOULD BE CORRECTABLE PURSUANT TO ASPR 2-406. HOWEVER, SINCE YOUR BID, AS SUBMITTED, EVIDENCES A MISTAKE RESULTING IN A MATERIAL DEVIATION FROM THE SPECIFICATIONS, IT WAS NONRESPONSIVE. SUCH A BID CANNOT UNDER ANY CIRCUMSTANCES BE CORRECTED SO AS TO MAKE IT RESPONSIVE TO THE INVITATION AND THUS ELIGIBLE FOR AWARD. TO ALLOW SUCH A CORRECTION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. SEE 40 COMP. GEN. 432 (1961) AND 38 COMP. GEN. 819 (1959).

FOR THE REASONS STATED, WE MUST CONCLUDE THAT REJECTION OF YOUR BID WAS PROPER, AND YOUR PROTEST MUST THEREFORE BE DENIED.