B-171169, MAR 10, 1971

B-171169: Mar 10, 1971

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AMENDMENTS ALTERING REQUIREMENTS FOR "SILICON BRONZE OR BRASS" BUS BARS TO "SILVER PLATED" AND AMENDMENTS ADVANCING DELIVERY DATES ARE MATERIAL ASPECTS OF THE INVITATION. THE CONTRACTING OFFICER WAS UNDER NO DUTY TO ADVISE PROTESTANT OF THE STATUS OF THE PROCUREMENT. THE PROTEST IS DENIED. TO POWELL ELECTRICAL MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR TELEGRAMS DATED OCTOBER 29. THE SOLICITATION WAS ISSUED FOR VARIOUS ITEMS INCLUDING MOTOR CONTROL CENTERS (SCHEDULE I) AND ELECTRICAL PANELBOARDS (SCHEDULE II). NINE AMENDMENTS WERE ISSUED. 0008 AND 0009 WERE ISSUED BY TWX AND DID NOT REQUIRE FORMAL ACKNOWLEDGMENT. THESE LATTER FOUR AMENDMENTS WERE CONFIRMED BY FORMAL AMENDMENTS. EACH OF WHICH RECITED THAT FORMAL ACKNOWLEDGMENT WAS NOT REQUIRED.

B-171169, MAR 10, 1971

BID RESPONSIVENESS - FAILURE TO ACKNOWLEDGE AMENDMENTS DECISION DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO RICHARDS OF ROCKFORD, INC., SECOND LOW BIDDER, FOR ELECTRICAL PANELBOARDS UNDER AN IFB ISSUED BY THE HUNTSVILLE DIVISION, ARMY, CORPS OF ENGINEERS. IN GENERAL, WHERE AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUALITY OR DELIVERY OF A PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT CANNOT BE WAIVED; AMENDMENTS ALTERING REQUIREMENTS FOR "SILICON BRONZE OR BRASS" BUS BARS TO "SILVER PLATED" AND AMENDMENTS ADVANCING DELIVERY DATES ARE MATERIAL ASPECTS OF THE INVITATION. FURTHER, UNDER ASPR 2-408, THE CONTRACTING OFFICER WAS UNDER NO DUTY TO ADVISE PROTESTANT OF THE STATUS OF THE PROCUREMENT. ACCORDINGLY, THE PROTEST IS DENIED.

TO POWELL ELECTRICAL MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAMS DATED OCTOBER 29, NOVEMBER 2, 1970, AND YOUR LETTERS DATED NOVEMBER 13 AND DECEMBER 30, 1970, PROTESTING THE AWARD TO RICHARDS OF ROCKFORD, INCORPORATED, FOR THE ELECTRICAL PANELBOARDS ON SCHEDULE II OF INVITATION FOR BIDS NO. DACA87 71-B-0002, ISSUED ON JULY 28, 1970, BY THE HUNTSVILLE DIVISION, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY.

THE SOLICITATION WAS ISSUED FOR VARIOUS ITEMS INCLUDING MOTOR CONTROL CENTERS (SCHEDULE I) AND ELECTRICAL PANELBOARDS (SCHEDULE II). NINE AMENDMENTS WERE ISSUED. AMENDMENTS 0001 THROUGH 0004 AND 0007 REQUIRED FORMAL ACKNOWLEDGMENT BY THE BIDDER ON HIS BID FORM. AMENDMENTS 0005, 0006, 0008 AND 0009 WERE ISSUED BY TWX AND DID NOT REQUIRE FORMAL ACKNOWLEDGMENT. THESE LATTER FOUR AMENDMENTS WERE CONFIRMED BY FORMAL AMENDMENTS, EACH OF WHICH RECITED THAT FORMAL ACKNOWLEDGMENT WAS NOT REQUIRED. SCHEDULE II WAS AFFECTED BY AMENDMENTS 0001, 0002, 0003, 0006, 0007 AND 0008.

BIDS WERE OPENED ON SEPTEMBER 29, 1970, AND 14 BIDS WERE RECEIVED. THE POWELL ELECTRICAL MANUFACTURING COMPANY WAS LOW BIDDER ON SCHEDULE II BUT IT WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENTS 0001 THROUGH 0004 AND 0007, AS REQUIRED. SCHEDULE II WAS AWARDED TO THE NEXT LOW BIDDER, RICHARDS OF ROCKFORD, INCORPORATED, ON OCTOBER 27, 1970.

BY TELEPHONE ON OCTOBER 29, 1970, THE CONTRACTING OFFICER ADVISED THE SALES MANAGER FOR POWELL THAT HIS FIRM'S BID HAD BEEN REJECTED AS NONRESPONSIVE. THIS ADVICE WAS CONFIRMED BY LETTER DATED OCTOBER 31, 1970, WHICH STATED:

" *** YOUR BID DID NOT MEET THE REQUIREMENTS OF PARAGRAPH 2-301 OF THE ARMED SERVICES PROCUREMENT REGULATION AND WAS DETERMINED TO BE NONRESPONSIVE. THIS DETERMINATION WAS BASED ON THE FOLLOWING:

"B. YOUR FIRM DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENTS 0001 THROUGH 0004 AND 0007 AS REQUIRED. THESE AMENDMENTS AFFECTED THE SUBSTANCE OF THE BIDS IN THAT CHANGES WERE MADE IN DELIVERY REQUIREMENTS AS WELL AS THE TECHNICAL ASPECTS OF THE ITEMS BEING PROCURED ON ALL BID SCHEDULES."

SINCE YOUR BID ON SCHEDULE I WAS NOT THE LOW BID, YOUR PROTEST CONCERNS ONLY THE AWARD ON THE ELECTRICAL PANELBOARDS (SCHEDULE II) OF THE SOLICITATION AND IS BASED ON THE FOLLOWING POINTS:

1. ALL ADDENDA WERE SUBSTANTIVE ALTHOUGH SOME REQUIRED FORMAL ACKNOWLEDGMENT AND OTHERS DID NOT, THUS, CREATING CONFUSION.

2. THE ADDENDA RECITED THAT FAILURE TO ACKNOWLEDGE MAY RESULT IN REJECTION OF THE BID. YOUR POSITION IS THAT A REJECTION IS DISCRETIONARY WITH THE CONTRACTING OFFICER.

3. THE CONTRACTING AUTHORITY SHOULD HAVE CONTACTED YOU AND INFORMED YOU OF THE STATUS OF THE PROCUREMENT.

4.YOUR BID WAS REJECTED WITHOUT NOTIFICATION ON A TECHNICALITY.

5. RICHARDS OF ROCKFORD, INCORPORATED, IS NOT REGULARLY ENGAGED IN "BUILDING" THIS TYPE OF EQUIPMENT (ELECTRICAL PANELBOARDS), AND IS IN FACT "BROKERING" THE CONTRACT TO FEDERAL PACIFIC ELECTRIC COMPANY.

PARAGRAPH 2-404.2(A) OF ARMED SERVICES PROCUREMENT REGULATION PROVIDES:

"2-404.2 REJECTION OF INDIVIDUAL BIDS.

"(A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS SHALL BE REJECTED.

"(C) ANY BID WHICH FAILS TO CONFORM TO THE DELIVERY SCHEDULE OR PERMISSIBLE ALTERNATES THERETO STATED IN THE INVITATION FOR BIDS SHALL BE REJECTED AS NONRESPONSIVE."

PARAGRAPH 7.2.2, PART II, SECTION F-2 OF THE ORIGINAL SOLICITATION SPECIFICATIONS, CONCERNING BUS BARS AND CONNECTOR BARS IN THE ELECTRICAL PANELBOARDS, PROVIDED THAT "ALL CONNECTIONS TO THE BUS SHALL BE SILICON BRONZE OR BRASS." AMENDMENT 0003 CHANGED THE ABOVE PROVISION TO READ: "ALL BUS CONNECTIONS SHALL BE SILVER PLATED AND SECURELY BOLTED WITH CADMIUM PLATED (OR SIMILARLY COATED) TYPE ASTM STANDARD A 325 HIGH STRENGTH STEEL BOLTS." FAILURE TO ACKNOWLEDGE THIS AMENDMENT WOULD LEAVE THE SUBMITTED BID AS OFFERING "SILICON BRONZE OR BRASS" BUS CONNECTORS, WHICH THE GOVERNMENT DID NOT WANT.

A SIMILAR SITUATION ARISES IN THOSE AMENDMENTS WHERE DELIVERY DATES WERE CHANGED. IN EACH AMENDMENT REQUIRING FORMAL ACKNOWLEDGMENT, WHERE DELIVERY DATES WERE AFFECTED THE DELIVERY DATES WERE ADVANCED, GIVING THE ULTIMATE CONTRACTOR A SHORTER PERIOD TO PERFORM.

IN GENERAL, WHERE AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY, QUALITY, OR DELIVERY OF A PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT CANNOT BE WAIVED. SEE B-162378, DECEMBER 21, 1967. THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL ASPECT OF AN INVITATION, AS AMENDED, WOULD BE PREJUDICIAL TO THE OTHER BIDDERS AND CONTRARY TO THE SPIRIT AND PURPOSE OF THE LAW GOVERNING PUBLIC CONTRACT PROCUREMENTS PURSUANT TO FORMAL ADVERTISING.

AS TO THE AMENDMENTS THAT DID NOT CALL FOR FORMAL ACKNOWLEDGEMENT, WE NOTE THAT EACH CHANGE RESULTED IN A RELAXATION OF THE REQUIREMENT. FOR EXAMPLE, IN PART II, SECTION F-2, PAGE 7, PARAGRAPH 7.2.2.1, OF THE ORIGINAL SOLICITATION, IT IS REQUIRED THAT THE NEUTRAL BUS SHALL BE LOCATED AT THE SAME END OF THE CABINET AS THE MAIN LUGS. AMENDMENT 0008 REMOVED THE REQUIREMENT OF THE LOCATION OF THE NEUTRAL BUS. OBVIOUSLY, THIS WAS OF BENEFIT TO A BIDDER, PERMITTING LOCATION OF THE BUS AT HIS DISCRETION. FAILURE TO ACKNOWLEDGE SUCH AMENDMENTS MAY BE WAIVED UNDER ASPR 2-405(IV). HOWEVER, AS STATED IN OUR LETTER OF TODAY TO THE SECRETARY OF THE ARMY, WE BELIEVE IT MAY BE DESIRABLE TO PROVIDE FOR THE ACKNOWLEDGEMENT OF ALL INVITATION AMENDMENTS OF A SUBSTANTIVE NATURE.

CONCERNING YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE CONTACTED YOU AND INFORMED YOU OF THE STATUS OF THE PROCUREMENT, YOU ARE ADVISED THAT HE WAS UNDER NO OBLIGATION TO SO ADVISE YOU. HE WAS OBLIGATED ONLY TO INFORM YOU OF THE REASON FOR REJECTING YOUR LOW BID AND, IF ASKED, THE NAME AND THE AMOUNT OF THE SUCCESSFUL BID. SEE ASPR 2-408. THE RECORD SHOWS THAT YOU WERE ADVISED OF THE REASON FOR REJECTING YOUR BID.

AS TO THE CONTENTION THAT THE SUCCESSFUL BIDDER IS "BROKERING" THE CONTRACT FOR PANELBOARDS, WE ARE ADVISED THAT RICHARDS OF ROCKFORD IS MANUFACTURING THE CABINETS AND INSTALLING ELECTRICAL COMPONENTS OBTAINED PRINCIPALLY FROM WESTINGHOUSE ELECTRIC CORPORATION AND ALSO FROM FEDERAL PACIFIC ELECTRIC COMPANY.

UPON REVIEW OF THE MATTER, WE CONCLUDE THAT YOUR PROTEST MUST BE DENIED.