B-171247, NOV. 30, 1970

B-171247: Nov 30, 1970

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SECRETARY: REFERENCE IS MADE TO THE LETTER OF NOVEMBER 5. REQUESTING THAT OUR OFFICE DECIDE WHETHER IT IS PROPER TO AWARD A CONTRACT TO WESLEY G. THE DESCRIPTION OF THE WORK WAS AS FOLLOWS: "CONSTRUCT FOUR RIVER FORD CROSSINGS. EACH CROSSING IS TO BE COMPRISED OF A LIGHTLY - REINFORCED CONCRETE SLAB WITH CUT-OFF WALLS AND IS TO BE FLANKED BY A GABION APRON ATTACHED TO THE DOWNSTREAM EDGE. 000 LINEAR FEET OF ROADWAY APPROACHES ARE TO BE CONSTRUCTED.". BIDS WERE OPENED ON OCTOBER 8. THE TWO LOWEST BIDS ON THE ABSTRACT ARE AS FOLLOWS: WESLEY G. 589.04 IF CORRECTION WERE PERMITTED FOR AN ALLEGED MISTAKE IN PLACING A DECIMAL POINT FOR THE UNIT PRICE FOR ITEM NO. 203 CHANGING $227.50 EACH TO $22.75 EACH.

B-171247, NOV. 30, 1970

CONTRACTS - QUESTIONABLE AWARD - CANCELLATION NOT REQUIRED ALLOWING THE AWARD OF CONTRACT TO WESLEY C. WATKINS, CONTRACTOR UNDER INVITATION FOR BIDS ISSUED BY U.S. FOREST SERVICE FOR CONSTRUCTION OF FOUR RIVER FORD CROSSINGS. AN ADDENDUM WHICH MAKES ONLY MINOR CHANGES IN A SOLICITATION AND WHICH INCORRECTLY STATES THAT BIDDER MUST ACKNOWLEDGE ITS RECEIPT TO BE RESPONSIVE MAY BE WAIVED AS A MINOR INFORMALITY AND THE BID CONSIDERED FOR AWARD.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF NOVEMBER 5, 1970, WITH ATTACHMENTS, FROM THE ACTING DIRECTOR, OFFICE OF PLANT AND OPERATIONS, OF YOUR DEPARTMENT, REQUESTING THAT OUR OFFICE DECIDE WHETHER IT IS PROPER TO AWARD A CONTRACT TO WESLEY G. WATKINS, CONTRACTOR (WATKINS), UNDER INVITATION FOR BIDS NO. R5-71-62, ISSUED ON SEPTEMBER 15, 1970, BY THE UNITED STATES FOREST SERVICE, DEPARTMENT OF AGRICULTURE.

THE DESCRIPTION OF THE WORK WAS AS FOLLOWS:

"CONSTRUCT FOUR RIVER FORD CROSSINGS. EACH CROSSING IS TO BE COMPRISED OF A LIGHTLY - REINFORCED CONCRETE SLAB WITH CUT-OFF WALLS AND IS TO BE FLANKED BY A GABION APRON ATTACHED TO THE DOWNSTREAM EDGE. ABOUT 1,000 LINEAR FEET OF ROADWAY APPROACHES ARE TO BE CONSTRUCTED."

BIDS WERE OPENED ON OCTOBER 8, 1970, AND THE TWO LOWEST BIDS ON THE ABSTRACT ARE AS FOLLOWS:

WESLEY G. WATKINS $ 93,027.90

CUSHMAN CONTRACTING COMPANY 109,607.23 THE BID FROM CALIFORNIA MARINA CONSTRUCTORS WOULD BE THE SECOND LOW BID AT $109,589.04 IF CORRECTION WERE PERMITTED FOR AN ALLEGED MISTAKE IN PLACING A DECIMAL POINT FOR THE UNIT PRICE FOR ITEM NO. 203 CHANGING $227.50 EACH TO $22.75 EACH.

ON SEPTEMBER 17, 1970, THE FOREST SERVICE ISSUED ADDENDUM NO. 1 TO THE SOLICITATION. THE FIRST PAGE OF THE ADDENDUM STATED:

"BIDDER MUST ACKNOWLEDGE RECEIPT OF THIS ADDENDUM ON THE REVERSE SIDE OF SF-21, BID FORM, OR BY DATING AND SIGNING ADDENDUM IN THE SPACE PROVIDED BELOW AND RETURN WITH BID. IF ACKNOWLEDGEMENT IS NOT RECEIVED IN THIS OFFICE BY DATE AND TIME SET FOR BID OPENING, BID WILL BE CONSIDERED NONRESPONSIVE." THE BID FROM WATKINS DID NOT ACKNOWLEDGE THE ABOVE ADDENDUM.

THE ONLY CHANGES MADE BY ADDENDUM NO. 1 WERE THE ONES EXPLAINED IN THE LETTER OF NOVEMBER 5 FROM YOUR DEPARTMENT WHICH STATES THAT THE ADDENDUM DID NOT AFFECT THE QUANTITY OR QUALITY OF THE WORK SPECIFIED IN ITEMS NOS. 1, 203 AND THE DRAWINGS AND ALSO THAT THE ADDENDUM DID NOT HAVE AN EFFECT ON PRICE. THE REPORT FROM YOUR DEPARTMENT ALSO ADVISES THAT THE LANGUAGE REQUIRING REJECTION OF A BID FOR FAILING TO ACKNOWLEDGE AN AMENDMENT WAS INCLUDED BY ERROR.

SECTION 1-2.405(D)(2) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES THAT FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT MAY BE CONSIDERED AS AN INFORMALITY WHICH MAY BE WAIVED IF:

"(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."

WE DO NOT THINK THAT THE QUOTED PROVISION ON PAGE 1 OF THE ADDENDUM NECESSARILY REQUIRES REJECTION OF A BID FOR FAILING TO ACKNOWLEDGE AN AMENDMENT WHERE THE FAILURE MAY OTHERWISE BE WAIVED IN ACCORDANCE WITH THE QUOTED PORTION OF FPR. THE FOLLOWING EXCERPT FROM B-162614, NOVEMBER 27, 1967, IS APPLICABLE HERE:

"REGARDING YOUR CONTENTION THAT THE REQUIREMENT FOR ACKNOWLEDGMENT WAS MANDATORY AND NOT PERMISSIVE, WE HAVE HELD THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVER- LITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS THE WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. COMP. GEN. 435. THE CITED DECISION HELD, IN EFFECT, THAT NO REQUIREMENT OF AN INVITATION MAY BE MADE MATERIAL BY THE LANGUAGE OF THE INVITATION UNLESS IT SERVES SOME REAL PURPOSE. HERE, THE SPECIAL NOTICE MERELY PROVIDED FOR AN OPTION OR A CHOICE AND DID NOT REQUIRE HIGHER STANDARDS OF PERFORMANCE. WE THEREFORE BELIEVE THAT THE REQUIREMENTS OF THE SPECIAL NOTICE WERE OF FORM RATHER THAN OF SUBSTANCE. PARAGRAPH 10(B) OF THE INVITATION PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN OFFERS RECEIVED."

PURSUANT TO OUR REVIEW OF ADDENDUM NO. 1, WE HAVE FOUND NO BASIS FOR QUESTIONING THE DETERMINATION BY YOUR DEPARTMENT THAT THIS ADDENDUM DID NOT AFFECT PRICE, QUANTITY, QUALITY OR DELIVERY. ACCORDINGLY, WATKINS' FAILURE TO ACKNOWLEDGE ADDENDUM NO. 1 MAY BE WAIVED AS A MINOR INFORMALITY, AND THIS BID MAY BE CONSIDERED FOR AWARD.