B-171062, DEC. 17, 1970

B-171062: Dec 17, 1970

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WHERE AN AMENDMENT TO THE INVITATION REPRESENTED A MATERIAL VARIATION HIGHER WAGE RATES TO BE REQUIRED UNDER THE DAVIS-BACON ACT- THE LATE TELEGRAPHIC ACKNOWLEDGEMENT OF THE AMENDMENT (LATE THROUGH NO FAULT OF PROTESTANT'S) ALONG WITH THE ASSERTION THAT ADCOM WAS SUBJECT TO UNION WAGE RATES WHICH WERE HIGHER THAN THOSE UNDER THE AMENDMENT MAKING IT UNNECESSARY FOR PROTESTANT TO REVISE ITS BID PRICE ARE NOT SUFFICIENT TO DISTURB THE FINDING THAT ADCOM'S FAILURE TO ACKNOWLEDGE THE AMENDMENT MADE IT NON-RESPONSIVE BECAUSE IT WAS NEVER LEGALLY BOUND TO THE TERMS SET FORTH THERE. CONNER AND CUNEO: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13. YOU CONTEND THAT ADCOM IS THE LOWEST RESPONSIVE.

B-171062, DEC. 17, 1970

BID PROTEST - BIDDER RESPONSIVENESS - LATE TELEGRAPHIC ACKNOWLEDGEMENT DENIAL OF PROTEST OF ADCOM CORPORATION, LOW BIDDER, AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR CONSTRUCTION IN CONNECTION WITH THE INSTALLATION OF NEW TELEPHONE SERVICE FOR CENTREX AT THE U.S. NAVAL ACADEMY, ANNAPOLIS, MD., TO HARRISON AND PALMER, INC., FOR FAILURE TO ACKNOWLEDGE AN AMENDMENT. WHERE AN AMENDMENT TO THE INVITATION REPRESENTED A MATERIAL VARIATION HIGHER WAGE RATES TO BE REQUIRED UNDER THE DAVIS-BACON ACT- THE LATE TELEGRAPHIC ACKNOWLEDGEMENT OF THE AMENDMENT (LATE THROUGH NO FAULT OF PROTESTANT'S) ALONG WITH THE ASSERTION THAT ADCOM WAS SUBJECT TO UNION WAGE RATES WHICH WERE HIGHER THAN THOSE UNDER THE AMENDMENT MAKING IT UNNECESSARY FOR PROTESTANT TO REVISE ITS BID PRICE ARE NOT SUFFICIENT TO DISTURB THE FINDING THAT ADCOM'S FAILURE TO ACKNOWLEDGE THE AMENDMENT MADE IT NON-RESPONSIVE BECAUSE IT WAS NEVER LEGALLY BOUND TO THE TERMS SET FORTH THERE.

TO SELLERS, CONNER AND CUNEO:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1970, AND PRIOR CORRESPONDENCE, ON BEHALF OF ADCOM CORPORATION, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. N62477-71-B-0192, ISSUED BY THE U.S. NAVAL ACADEMY, ANNAPOLIS, MARYLAND. YOU CONTEND THAT ADCOM IS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER AND THAT THE REJECTION OF ITS BID BY THE CONTRACTING OFFICER IS ERRONEOUS.

THE SUBJECT INVITATION WAS ISSUED ON SEPTEMBER 15, 1970, FOR CONSTRUCTION IN CONNECTION WITH THE INSTALLATION OF NEW TELEPHONE SERVICE FOR CENTREX AT THE U.S. NAVAL ACADEMY, ANNAPOLIS, MARYLAND. ON SEPTEMBER 25, 1970, AMENDMENT NO. 1 WAS ISSUED WHICH, AMONG OTHER CHANGES, ADVISED THAT A NEW DAVIS-BACON ACT WAGE RATE WOULD BE ISSUED LATER. ON OCTOBER 5, 1970, AMENDMENT NO. 2 WAS ISSUED EXTENDING THE BID OPENING TO OCTOBER 12, 1970, AND INCORPORATING THE NEW WAGE RATE DECISION.

BIDS WERE OPENED ON OCTOBER 12, 1970, AND OF THE SEVEN BIDS RECEIVED IT WAS DETERMINED THAT THE LOW BID WAS SUBMITTED BY ADCOM CORPORATION IN THE AMOUNT OF $24,276. THE SECOND LOW BID WAS SUBMITTED BY HARRISON AND PALMER, INC., IN THE AMOUNT OF $24,512.

THE NAVY REPORTS THAT ADCOM DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 2 ON ITS BID FORM. THE AMENDMENT DIRECTED OFFERORS TO ACKNOWLEDGE ITS RECEIPT PRIOR TO THE OPENING OF BIDS AND STATED 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." HOWEVER, ADCOM'S ACKNOWLEDGMENT OF AMENDMENT NO. 2 WAS NOT RECEIVED BY THE ISSUING OFFICE PRIOR TO BID OPENING. THEREFORE, THE CONTRACTING OFFICER REJECTED ADCOM'S BID FOR FAILURE TO COMPLY WITH THE REQUIREMENT OF AMENDMENT NO. 2 TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT PRIOR TO BID OPENING.

YOU STATE THAT ADCOM'S TELEGRAM ACKNOWLEDGING ITS RECEIPT OF AMENDMENT NO. 2 WAS DULY TRANSMITTED BY WESTERN UNION FROM THE SAN DIEGO, CALIFORNIA, WESTERN UNION OFFICE WHERE IT WAS FILED. HOWEVER, YOU CONTEND THAT BECAUSE OF A TRANSMISSION FAILURE BETWEEN CALIFORNIA AND MARYLAND, THE TELEGRAM WAS DELIVERED TO THE CONTRACTING OFFICER BY WESTERN UNION AFTER THE OPENING OF BIDS. IN THIS REGARD, THE NAVY HAS ADVISED OUR OFFICE THAT THE OFFICER IN CHARGE OF CONSTRUCTION (OICC) HAS NEVER RECEIVED, IN WRITING, THE TELEGRAPHIC ACKNOWLEDGMENT OF ADCOM. FURTHER, THE NAVY ADVISES THAT AFTER BID OPENING, THE LOCAL WESTERN UNION OFFICE DID CALL THE OICC TO READ THE CONTENTS OF THE UNDELIVERED TELEGRAM, BUT THE TELEGRAPH COMPANY HAS NOT FURNISHED THE OICC WITH A COPY OF ADCOM'S TELEGRAM ACKNOWLEDGING RECEIPT OF AMENDMENT NO. 2.

THE QUESTION FOR OUR DETERMINATION IS WHETHER THE FAILURE OF THE ISSUING OFFICE (OICC) TO RECEIVE ADCOM'S TELEGRAPHIC ACKNOWLEDGMENT OF AMENDMENT NO. 2 PRIOR TO BID OPENING RENDERED ITS BID NONRESPONSIVE. YOU CONTEND THAT ADCOM'S BID WAS ACCEPTABLE UNDER THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR)2-405 AND THE DECISIONS OF OUR OFFICE WHICH INTERPRET THAT SECTION. SECTION 2-405 OF ASPR PROVIDES IN PERTINENT PART AS FOLLOWS:

"2-405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"(IV) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF--

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

"(B) 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, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PURCHASING ACTIVITY;"

YOU CONTEND THAT THE FAILURE OF THE OICC TO RECEIVE ADCOM'S ACKNOWLEDGMENT OF AMENDMENT NO. 2 PRIOR TO BID OPENING SHOULD BE WAIVED AS A MINOR INFORMALITY FOR THE FOLLOWING REASON. YOU STATE THAT, WHILE THE WAGE RATE DECISION SUBSTITUTED BY AMENDMENT NO. 2 FOR THE DECISION IN THE IFB INCREASED THE MINIMUM WAGE RATES PAYABLE TO CONSTRUCTION EMPLOYEES FOR WORK IN THE VICINITY OF THE NAVAL ACADEMY, ADCOM CORPORATION WAS SUBJECT TO UNION WAGE RATES WHICH WERE HIGHER THAN THOSE IN BOTH THE ORIGINAL AND SUBSTITUTED WAGE RATE DECISIONS. THEREFORE YOU CONTEND THAT AMENDMENT NO. 2 HAD NO EFFECT WHATEVER ON ADCOM'S PROJECTED COSTS UNDER THE CONTRACT AND THAT ADCOM'S ACKNOWLEDGMENT OF AMENDMENT NO. 2 DID NOT IN ANY WAY REVISE ITS BID PRICE.

YOU STATE THAT THE DECISIONS OF OUR OFFICE HAVE HELD THAT THE CONTRACTING OFFICER SHOULD WAIVE THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE RECEIPT OF AN AMENDMENT TO THE BID INVITATION PRIOR TO THE BID OPENING ONLY WHEN THE LOW BIDDER NOT ONLY IS AWARE OF THE PREVAILING WAGE RATES OR OF THE TERMS OF THE AMENDMENT, BUT HAS IN SOME OTHER WAY MANIFESTED HIS ASSENT TO THE TERMS OF THE AMENDMENT PRIOR TO THE OPENING OF BIDS. THE CIRCUMSTANCES MUST BE SUCH THAT THE LOW BIDDER LEGALLY CAN BE HELD BOUND TO THE TERMS AND CONDITIONS OF THE AMENDMENT. YOU STATE THAT OUR OFFICE HAS ENUNCIATED THIS POLICY BECAUSE GIVEN THE EXISTENCE OF A COMMITMENT BY THE LOW BIDDER PRIOR TO BID OPENING TO BE BOUND BY THE AMENDMENT, THEN THE FAILURE TO ACKNOWLEDGE THE AMENDMENT COULD HAVE NO EFFECT ON PRICE, QUANTITY, QUALITY, OR THE RELATIVE STANDING OF THE BIDDERS. YOU CITE THE FOLLOWING DECISIONS OF OUR OFFICE. 40 COMP. GEN. 48 (1960); B-168551, FEBRUARY 3, 1970; B-166530, JULY 3, 1969; B-165670, FEBRUARY 24, 1969; B- 164437, JUNE 26, 1968; B-160257, DECEMBER 15, 1966; B-160176, OCTOBER 11, 1966; B-157832, NOVEMBER 9, 1965.

IN SUPPORT OF YOUR CONTENTION THAT ADCOM WOULD BE REQUIRED TO PAY THE PRESCRIBED WAGE RATES, YOU REFER TO OUR DECISION B-160257, DECEMBER 15, 1966, WHICH CONSIDERED THE EFFECT OF A BIDDER'S FAILURE TO ACKNOWLEDGE A WAGE RATE AMENDMENT. IN THAT CASE WE STATED IN PART AS FOLLOWS:

" *** THE CONTROLLING CONSIDERATION IN CASES OF THIS TYPE IS WHETHER, UNDER THE CIRCUMSTANCES PRESENTED, IT CAN BE CONCLUDED THAT THE BIDDER HAS, AT THE TIME OF BID OPENING, LEGALLY BOUND ITSELF TO THE TERMS AND CONDITIONS SET FORTH IN THE ADDENDUM. IT IS NOT ENOUGH THAT THE BIDDER MAY BE AWARE OF THE PREVAILING WAGE RATES OR WHATEVER OTHER TERMS MAY BE SET FORTH IN THE ADDENDUM. THE QUESTION, RATHER, IS WHETHER THE BIDDER HAS MANIFESTED HIS ASSENT TO THE TERMS OF THE ADDENDUM PRIOR TO BID OPENING OR, UNDER THE CIRCUMSTANCES, CAN LEGALLY BE HELD BOUND TO THE TERMS IN THE ADDENDUM ON THE BASIS OF HIS BID AS SUBMITTED. *** "

IT IS YOUR POSITION THAT THERE SHOULD BE NO QUESTION THAT ADCOM HAS MANIFESTED ITS ASSENT TO AMENDMENT NO. 2 SINCE ADCOM'S TELEGRAPHIC ACKNOWLEDGMENT WAS SENT TO THE DESIGNATED OFFICE ON OCTOBER 7, 1970, FIVE DAYS BEFORE THE SCHEDULED BID OPENING. ACCORDINGLY, IT IS YOUR BELIEF THAT THERE SHOULD BE NO DISPUTE THAT ADCOM WAS AWARE OF THE PREVAILING WAGE RATES AND OF THE TERMS AND CONDITIONS OF THE AMENDMENT AT THE TIME IT SENT ITS TIMELY TELEGRAPHIC ACKNOWLEDGMENT. FURTHER, YOU CONTEND THAT ADCOM "LEGALLY BOUND ITSELF" FOR THE PURPOSES OF ASPR 2-405 AND THE ABOVE- QUOTED PRINCIPLE ENUNCIATED BY OUR OFFICE. HOWEVER, WE DO NOT BELIEVE THE FACTS HERE SUPPORT THE CONCLUSION THAT ADCOM "LEGALLY BOUND ITSELF" TO THE TERMS OF AMENDMENT NO. 2.

IT IS THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE FAILURE OF A BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE AND SUCH FAILURE CANNOT BE WAIVED. 37 COMP. GEN. 785 (1958). THE BASIS FOR SUCH RULE IS THAT GENERALLY THE BIDDER WOULD HAVE AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY FURNISHING EXTRANEOUS EVIDENCE THAT THE ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT.

SINCE THE SUBJECT MATTER OF AMENDMENT NO. 2 DEALS WITH THE WAGE RATES PAYABLE UNDER THE CONTRACT WHICH DIRECTLY AFFECT THE CONTRACT PRICE, THERE CAN BE NO QUESTION THAT THE IFB PROVISION REQUIRING THE PAYMENT OF MINIMUM WAGES TO BE PRESCRIBED BY THE SECRETARY OF LABOR WAS A MATERIAL REQUIREMENT OF THE IFB AS AMENDED. THE NAVY ADVISES THAT IT HAS BEEN DETERMINED THAT THE NEW WAGE DECISION DID SIGNIFICANTLY RAISE MINIMUM WAGES TO BE PAID WORKERS ON THE SUBJECT CONTRACT. WE ARE ADVISED THAT THE BASIC HOURLY WAGE FOR COMMON LABORERS WAS INCREASED FROM $3.65 TO $4.05 AND THAT A LARGE PORTION OF THIS CONTRACT WILL INVOLVE USE OF THESE LABORERS.

IT IS OUR VIEW THAT A BIDDER WHO FAILED TO INDICATE BY ACKNOWLEDGMENT OF THE AMENDMENT OR OTHERWISE THAT HE HAD CONSIDERED THE WAGE SCHEDULE COULD NOT, WITHOUT HIS CONSENT, BE REQUIRED TO PAY THE WAGE RATES WHICH WERE PRESCRIBED THEREIN BUT WHICH WERE NOT SPECIFIED IN THE ORIGINAL IFB, NOTWITHSTANDING THAT IT IS ALLEGED THAT HE ALREADY IS PAYING THE SAME OR HIGHER WAGE RATES UNDER AGREEMENTS WITH LABOR UNIONS OR OTHER ARRANGEMENTS. SEE B-160257, DECEMBER 15, 1966.

YOU CITE SEVERAL DECISIONS OF OUR OFFICE TO SUPPORT YOUR CONTENTION THAT A CONTRACTING OFFICER MUST WAIVE A LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE RECEIPT OF AN AMENDMENT TO THE IFB PRIOR TO THE BID OPENING WHERE THE LOW BIDDER "OTHERWISE" INDICATED THAT HE HAD CONSIDERED THE WAGE SCHEDULE. HOWEVER, WE DO NOT THINK THAT THE CITED CASES ARE APPLICABLE SINCE UNDER THE CIRCUMSTANCES PRESENTED IN EACH OF THOSE CASES, IT COULD BE CONCLUDED THAT THE BIDDER HAD, AT THE TIME OF BID OPENING, IN FACT LEGALLY BOUND ITSELF TO THE TERMS AND CONDITIONS SET FORTH IN THE ADDENDUM.

IN THE PRESENT CASE, YOU STATE THAT ADCOM SENT A TELEGRAPHIC ACKNOWLEDGMENT OF AMENDMENT NO. 2 TO THE OICC FIVE DAYS PRIOR TO BID OPENING AND THAT THE PHYSICAL EXISTENCE OF THIS TELEGRAM PROVES THAT ADCOM HAD MANIFESTED ITS ASSENT TO THE TERMS OF THE ADDENDUM PRIOR TO BID OPENING AND THAT ADCOM CAN LEGALLY BE HELD BOUND TO THE TERMS IN THE ADDENDUM. THE RECORD BEFORE US CONTAINS A LETTER TO ADCOM FROM WESTERN UNION, SAN DIEGO, CALIFORNIA, WHICH STATES THAT WESTERN UNION'S SAN DIEGO OFFICE RECORDS INDICATE THAT ADCOM'S TELEGRAM OF OCTOBER 7, 1970, WAS DULY TRANSMITTED, BUT WESTERN UNION'S ANNAPOLIS OFFICE ADVISES THAT THEY HAVE NO RECORD OF RECEIPT WHICH INDICATES A TRANSMISSION FAILURE. HOWEVER, WE DO NOT THINK THAT THE TERMS OF THE INVITATION PERMIT THE CONSIDERATION OF SUCH EVIDENCE TO ESTABLISH WHETHER ADCOM IN FACT CONSIDERED THE PROVISIONS OF THE AMENDMENT.

IN OUR OPINION, THE FAILURE OF ADCOM TO ACKNOWLEDGE AMENDMENT NO. 2 PRIOR TO BID OPENING WAS A MATERIAL DEVIATION AND NOT SUBJECT TO WAIVER UNDER ASPR 2-405.

YOU RECOGNIZE THAT ADCOM'S TELEGRAPHIC ACKNOWLEDGMENT DID NOT ARRIVE PRIOR TO BID OPENING THROUGH NO FAULT OF THE GOVERNMENT AND, THEREFORE, MAY NOT BE CONSIDERED TIMELY. SINCE THE ACKNOWLEDGMENT OF AN ADDENDUM WHICH AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT IS REQUIRED TO MAKE A BID RESPONSIVE, THE ACKNOWLEDGMENT OF THE ADDENDUM MUST BE CONSIDERED AS PART OF ADCOM'S BID. THE PROVISIONS OF THE INVITATION DEALING WITH "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" ARE SET FORTH IN PERTINENT PART BELOW:

"7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (1968 DEC.)

(A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED." ASPR 2-304(A) PROVIDES WITH RESPECT TO THE MODIFICATION OF BIDS IN PART AS FOLLOWS:

"(A) BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE SUBMITTED SO AS TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. *** "

IN THIS RESPECT, WE HELD IN B-152232, OCTOBER 21, 1963, AS FOLLOWS:

" *** THE TELEGRAPHIC BID MODIFICATION--WHICH IS PERMITTED--REFERS TO AN EXISTING BID, WHERE THE GOVERNMENT HAS REASON TO BELIEVE THAT THE TELEGRAM SENDER (THE BIDDER) INTENDED TO INCLUDE THE TELEGRAPHIC TERMS AS A PART OF ITS BID. IN THIS CONTENT, WE THINK THAT THE M & T SERVICE TELEGRAM, WHILE SERVING TO COMPLETE AN OTHERWISE INCOMPLETE BID BY INCORPORATING THE ADDENDUM, WAS IN THE NATURE OF A BID MODIFICATION--A CHANGE TO AN EXISTING BID--RATHER THAN A BID. SEE 40 COMP. GEN. 337, WHERE WE TREATED A TELEGRAPHIC ACKNOWLEDGMENT OF AN ADDENDUM TO A SPECIFICATION AS A BID MODIFICATION. *** "

THE AMENDMENT AUTHORIZED BIDDERS TO SUBMIT THEIR ACKNOWLEDGMENT BY TELEGRAM BUT PROVIDED 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." SINCE ADCOM'S ACKNOWLEDGMENT OF THIS MATERIAL AMENDMENT WAS NOT RECEIVED AT THE ISSUING OFFICE PRIOR TO BID OPENING, ITS BID MAY NOT BE CONSIDERED FOR AWARD, REGARDLESS OF THE CAUSE OF THE LATE RECEIPT, INCLUDING DELAYS CAUSED BY THE TELEGRAPH COMPANY. SEE ASPR 2- 303.4. ANY DELAY IN RECEIPT OF ADCOM'S TELEGRAPHIC ACKNOWLEDGMENT OF AMENDMENT NO. 2 WAS NOT DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AND THEREFORE WE FIND NO LEGAL BASIS FOR PERMITTING CONSIDERATION OF ADCOM'S BID.

IN OUR VIEW, THE CONTROLLING CONSIDERATION IN THIS AND SIMILAR CASES IS THAT WHERE A BIDDER FAILS TO ACKNOWLEDGE AN AMENDMENT OF SUBSTANCE, HIS BID IS NONRESPONSIVE BECAUSE ACCEPTANCE OF THE BID IN THE FORM IT EXISTS AT THE TIME OF OPENING WOULD NOT RESULT IN A CONTRACT CONTAINING A STATEMENT OF THE MINIMUM WAGE RATES TO BE PAID AS REQUIRED BY THE DAVIS- BACON ACT, 40 U.S.C. 276A. SEE B-169581, MAY 8, 1970.

UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT ADCOM'S BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE AND ITS PROTEST IS THEREFORE DENIED.