B-171243, DEC. 31, 1970

B-171243: Dec 31, 1970

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WHERE PROTESTANT WAS INADVERTANTLY OMITTED FROM THE LIST OF PLANHOLDERS AND THEREFORE DID NOT RECEIVE AMENDMENTS TO THE IFB WHICH CONTAINED CHANGES IN THE TECHNICAL REQUIREMENTS. ITS BID MUST BE REJECTED FOR TO ALLOW ACKNOWLEDGMENT AFTER BIDS ARE OPENED WOULD GIVE THE BIDDER AN OPPORTUNITY TO VARY THE TERMS OF HIS BID AFTER OPENING TO THE PREJUDICE OF OTHER BIDDERS WHICH WOULD IMPAIR THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. TO BANKHEAD RAILWAY ENGINEERING: REFERENCE IS MADE TO YOUR PROTEST. WHICH WAS REFERRED TO OUR OFFICE BY THE HONORABLE FLETCHER THOMPSON. BID OPENING WAS SCHEDULED FOR OCTOBER 6. OF THE IFB WERE ISSUED. IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED.".

B-171243, DEC. 31, 1970

BID PROTEST - FAILURE TO RECEIVE AMENDMENTS DENIAL OF PROTEST BY BANKHEAD RAILWAY ENGINEERING, LOW BIDDER AGAINST THE AWARD OF CONSTRUCTION CONTRACT ISSUED BY NAVAL FACILITIES ENGINEERING COMMAND TO THE SECOND LOW BIDDER. WHERE PROTESTANT WAS INADVERTANTLY OMITTED FROM THE LIST OF PLANHOLDERS AND THEREFORE DID NOT RECEIVE AMENDMENTS TO THE IFB WHICH CONTAINED CHANGES IN THE TECHNICAL REQUIREMENTS, ITS BID MUST BE REJECTED FOR TO ALLOW ACKNOWLEDGMENT AFTER BIDS ARE OPENED WOULD GIVE THE BIDDER AN OPPORTUNITY TO VARY THE TERMS OF HIS BID AFTER OPENING TO THE PREJUDICE OF OTHER BIDDERS WHICH WOULD IMPAIR THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. THEREFORE THE PROTEST MUST BE DENIED.

TO BANKHEAD RAILWAY ENGINEERING:

REFERENCE IS MADE TO YOUR PROTEST, WHICH WAS REFERRED TO OUR OFFICE BY THE HONORABLE FLETCHER THOMPSON, HOUSE OF REPRESENTATIVES, AGAINST THE REJECTION OF YOUR FIRM'S BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. N62472-70-B-0082, ISSUED BY THE DEPARTMENT OF THE NAVY, NAVAL FACILITIES ENGINEERING COMMAND, NORTHERN DIVISION, PHILADELPHIA, PENNSYLVANIA.

THE IFB, ISSUED ON SEPTEMBER 3, 1970, SOLICITED BIDS FOR A CONSTRUCTION CONTRACT TO REPAIR RAILROAD AND CRANE TRACKS AT THE U.S. NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA. BID OPENING WAS SCHEDULED FOR OCTOBER 6, 1970. ON SEPTEMBER 23 AND 28, 1970, AMENDMENTS 1 AND 2, RESPECTIVELY, OF THE IFB WERE ISSUED. AMENDMENT 2 INSERTED A REQUIREMENT THAT BIDS SHOULD BE BINDING FOR A PERIOD OF 60 CALENDAR DAYS SUBSEQUENT TO THE DATE SCHEDULED FOR BID OPENING. AMENDMENT 1 CHANGED SEVERAL TECHNICAL REQUIREMENTS AND OTHER PROVISIONS OF THE SPECIFICATIONS. BLOCK 9 OF EACH AMENDMENT CONTAINS THE FOLLOWING LANGUAGE:

"OFFERORS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SPECIFIED IN THE SOLICITATION, OR AS AMENDED, BY ONE OF THE FOLLOWING METHODS:

"(A) BY SIGNING AND RETURNING COPIES OF THIS AMENDMENT; (B) BY ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE OFFER SUBMITTED, OR (C) BY SEPARATE LETTER OR TELEGRAM WHICH INCLUDES A REFERENCE TO THE SOLICITATION AND AMENDMENT NUMBERS. 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. IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED, SUCH CHANGE MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THE SOLICITATION AND THIS AMENDMENT, AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED."

WE ARE ADVISED BY THE NAVY THAT AMENDMENT 1 MAKES "SIGNIFICANT CHANGES IN THE TECHNICAL REQUIREMENTS, AND EXTENDED THE TIME FOR COMPLETION." THIS REGARD, WE ARE ADVISED THAT "THE GOVERNMENT ESTIMATE IS THAT THIS AMENDMENT (1) WOULD INCREASE THE COST OF PERFORMANCE BY APPROXIMATELY $7,000."

THE NAVY HAS SUMMARIZED THE EVENTS WHICH TRANSPIRED SUBSEQUENT TO BID OPENING, WHICH ESTABLISHED YOUR FIRM AS THE LOW BIDDER, AS FOLLOWS:

" *** AN EXAMINATION OF THE APPARENT LOW BID OF BANKHEAD REVEALS THAT THE FIRM FAILED TO ACKNOWLEDGE RECEIPT OF THE TWO AMENDMENTS. BY TELEGRAM OF 12 OCTOBER, BANKHEAD PROTESTED ANY ACTION TO DISALLOW THEIR BID, AND BY LETTER OF 19 OCTOBER, THEY FURNISHED EXECUTED COPIES OF THE AMENDMENTS, AND STATED THAT THEY WOULD ACCEPT THE CONTRACT AT NO INCREASE IN THEIR BID PRICE.

"AN INVESTIGATION INTO THIS MATTER REVEALED THAT ALTHOUGH THE FIRM HAD REQUESTED PLANS AND SPECIFICATIONS FOR THIS PROJECT ON 8 SEPTEMBER, THEIR NAME HAD BEEN INADVERTENTLY OMITTED FROM THE LIST OF PLANHOLDERS FOR THE CONTRACT WHICH WAS MAINTAINED BY THE NORTHERN DIVISION. THIS IS THE LIST WHICH IS CONSULTED FOR MAILING OF AMENDMENTS AND ALL OTHER CORRESPONDENCE CONCERNING THE PARTICULAR PROCUREMENT. ACCORDINGLY, WE ACKNOWLEDGE THAT NEITHER OF THE AMENDMENTS TO THE IFB WERE SENT TO BANKHEAD." AWARD WAS MADE ON NOVEMBER 4, 1970, TO THE SECOND LOW BIDDER.

IT IS CLEAR FROM THE RECORD THAT AMENDMENT 1 TO THE IFB EFFECTED MATERIAL AND SIGNIFICANT CHANGES IN THE ADVERTISED REQUIREMENTS. THEREFORE, THE QUESTION IS WHETHER THE INADVERTENT FAILURE OF A CONTRACTING AGENCY TO SEND A BIDDER A COPY OF A MATERIAL AMENDMENT MAY PROPERLY PROVIDE A BASIS FOR REJECTION OF THAT BIDDER'S BID AS NONRESPONSIVE.

WE HAVE HELD THAT A BID WHICH IS NONRESPONSIVE ONLY BECAUSE THE ADMINISTRATIVE OFFICE INADVERTENTLY NEGLECTED TO SEND A COPY OF A MATERIAL AND SIGNIFICANT AMENDMENT TO A BIDDER MUST BE REJECTED. 40 COMP. GEN. 126, 128 (1960); 49 COMP. GEN. 257, 262 (1969). IN B 166255, MAY 27, 1969, WE DISCUSSED THE RATIONALE FOR THIS RULE:

" *** THIS SEEMINGLY HARSH RULE IS NECESSARY BECAUSE OTHERWISE AN AWARD TO A BIDDER NOT ACKNOWLEDGING A MATERIAL AMENDMENT WOULD NOT BIND THAT BIDDER TO THE SAME CONTRACT TERMS BY WHICH OTHER BIDDERS WOULD BE BOUND. FURTHER, TO ALLOW ACKNOWLEDGMENT AFTER BIDS ARE OPENED WOULD GIVE THE BIDDER AN OPPORTUNITY TO VARY THE TERMS OF HIS BID AFTER OPENING TO THE PREJUDICE OF OTHER BIDDERS, A PRACTICE WHICH IS PROHIBITED BECAUSE IT WOULD IMPAIR THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM."

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.