B-171370, JUN 11, 1971

B-171370, JUN 11, 1971

BID PROTEST - AMENDMENT - TIME FOR CONSIDERATION DENIAL OF PROTEST OF ROYAL SERVICES, INC., SEVENTH LOW BIDDER, AGAINST AWARD OF CONTRACT TO ANY OTHER FIRM UNDER IFB ISSUED BY U.S. ARMY, PROCUREMENT DIVISION, FORT GORDON, GEORGIA, FOR CUSTODIAL SERVICES. PROTESTANT ALLEGES THAT IFB SHOULD BE CANCELLED AND REISSUED AS THEY DID NOT RECEIVE THE AMENDMENT TO THE INVITATION AND AS INSUFFICIENT TIME WAS PROVIDED FOR CONSIDERATION BEFORE OPENING, EVEN IF AMENDMENT HAD BEEN RECEIVED. AN INADVERTENT FAILURE OF PROCURING AGENCY TO PROVIDE BIDDER WITH AN AMENDMENT IS NOT A JUSTIFIABLE BASIS FOR DISTURBING AN OTHERWISE PROPER AWARD. AS THE AMENDMENT, WHICH WAS MADE THREE DAYS PRIOR TO OPENING, DID NOT PRODUCE ANY CHANGE IN BIDS AND AS IT WAS A MINOR CLARIFICATION OF MATTERS IN THE ORIGINAL SOLICITATION, IT CANNOT BE SAID THAT TIME ALLOWED FOR REPLY WAS INSUFFICIENT.

TO MILLAR & FALLIN:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1971, AND PRIOR CORRESPONDENCE, ON BEHALF OF ROYAL SERVICES, INC., PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DABC11-71-B 0021, ISSUED BY THE PROCUREMENT DIVISION, FORT GORDON, GEORGIA, ON OCTOBER 19, 1970.

THE IFB COVERED THE PROCUREMENT OF CUSTODIAL SERVICES FOR CERTAIN ACTIVITIES LOCATED ON THE ABOVE INSTALLATION AND BID OPENING WAS SET FOR NOVEMBER 19, 1970. WHEN BIDS WERE OPENED, THE ADMINISTRATIVE REPORT ADVISES THAT ROYAL'S BID WAS THE SEVENTH LOWEST. THREE DAYS PRIOR TO BID OPENING, ON NOVEMBER 16, THE IFB WAS TELEGRAPHICALLY AMENDED. THE CONTRACTING OFFICER MAINTAINS THAT THE AMENDMENT MERELY CLARIFIED THE IFB AND HAD ONLY A TRIVIAL IMPACT ON THE SOLICITATION AS EVIDENCED BY THE FACT THAT NO BIDDER CHANGED ITS BID PRICE BECAUSE OF THE AMENDMENT.

ROYAL CONTENDS THAT BECAUSE THE TELEGRAM WAS MISADDRESSED IT NEVER RECEIVED THE AMENDMENT UNTIL AFTER BIDS WERE OPENED. WHILE IT SPECIFICALLY STATES THAT IT DOES NOT CONTEND THAT THE AMENDMENT WOULD HAVE CAUSED A REVISION OF ITS BID, ROYAL NEVERTHELESS ARGUES THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES CANCELLATION OF THE CONTRACT AWARDED IN THIS CASE BECAUSE, CONTRARY TO PARAGRAPHS 2 208(C) AND 18-206 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE TIME ALLOWED BETWEEN ISSUANCE OF THE AMENDMENT AND BID OPENING WAS INSUFFICIENT TO ALLOW BIDDERS TO CONSIDER THE AMENDMENT AND MODIFY THEIR BIDS IF THEY SO DESIRED.

WE NEED NOT RESOLVE THE FACTUAL DISPUTE AS TO WHETHER THE TELEGRAM TO ROYAL WAS, IN FACT, MISADDRESSED. WE HAVE HELD THAT THE INADVERTENT FAILURE OF A PURCHASING ACTIVITY TO FURNISH A BIDDER WITH AN AMENDMENT DOES NOT CONSTITUTE A SUFFICIENT BASIS TO DISTURB AN OTHERWISE PROPER AWARD. B-169618, JULY 21, 1970. SEE ALSO 40 COMP. GEN. 126 (1960). GENERALLY, THE RISK OF NONRECEIPT OF AN AMENDMENT IS CLEARLY ON THE BIDDER. SEE B-171797, APRIL 15, 1971; B-171398, MARCH 30, 1971; B 167409, SEPTEMBER 11, 1969. THESE PRINCIPLES ARE APPLICABLE TO THE INSTANT SITUATION.

THEN TOO, IT WOULD NOT APPEAR THAT BIDDERS WERE MISLED BY THE ORIGINAL SPECIFICATIONS SO THAT THE AMENDMENT WOULD REQUIRE REVISIONS TO THEIR BIDS. THE FIRST CHANGE CAUSED BY THE AMENDMENT WAS TO ADD TO THE BIDDING SCHEDULE THE SPECIFIC PARAGRAPH AND PAGE NUMBER OF THE SPECIFICATION COVERING CUSTODIAL SERVICES FOR THE ARMY HOSPITAL. WE NOTE, HOWEVER, THAT THE SPECIFICATION ITSELF EXPRESSLY REFERS TO THE HOSPITAL SO THAT BIDDERS KNEW EXACTLY TO WHAT ACTIVITY THE SPECIFICATION HAD REFERENCE. THE SECOND CHANGE WAS THE DELETION OF A SPECIFICATION FOR CUSTODIAL SERVICES FOR THE CENTER LIBRARY. CONSIDERING THAT THE IFB AND ALL CUSTODIAL PERFORMANCE SCHEDULES MENTION ONLY THE ARMY HOSPITAL, WE THINK THAT ALL BIDDERS REALIZED, IN THE FIRST INSTANCE, THAT THE DELETED SPECIFICATION WAS IRRELEVANT TO THE PRESENT PROCUREMENT. AS A FINAL MATTER, WE NOTE THAT THE CONTRACTING OFFICER'S CONTENTION THAT NO BID PRICES WERE CHANGED AS A RESULT OF THE MATTERS ADDED OR DELETED BY THE AMENDMENT REMAINS UNREFUTED BY ANYTHING IN THE RECORD. IN SHORT, WE DO NOT BELIEVE THAT THE AMENDMENT OF ITSELF WAS SUFFICIENT TO CAUSE ANY MAJOR CHANGE IN A BIDDER'S POSITION.

THIS BRINGS US TO THE MATTER OF THE SUFFICIENCY OF TIME BETWEEN ISSUANCE OF THE AMENDMENT AND BID OPENING. AS WE ADVISED ROYAL IN OUR PREVIOUS DECISION B-171669, MARCH 24, 1971, ASPR 18-206 RELATES TO CONSTRUCTION CONTRACTS. IT IS, THEREFORE, INAPPLICABLE TO THE PRESENT CUSTODIAL CONTRACT. ASPR 2-208(C), WHILE APPLICABLE, REQUIRES ONLY THAT AN AMENDMENT BE ISSUED IN SUFFICIENT TIME TO ALLOW BIDDERS TO CONSIDER ITS CONTENTS IN SUBMITTING OR MODIFYING THEIR BIDS. "SUFFICIENT TIME" IS NOT OTHERWISE DEFINED AND CONSEQUENTLY A DETERMINATION OF WHAT CONSTITUTES SUCH TIME MUST BE MADE WITH REGARD TO ALL THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR PROTEST. IN THIS INSTANCE, GIVEN THE MINIMAL IMPACT, IF ANY, WHICH THE AMENDMENT MAY HAVE HAD ON BIDS AND THE FACT THAT TELEGRAPHIC REVISIONS WERE ACCEPTABLE, WE CANNOT CONCLUDE THAT 3 DAYS BETWEEN AMENDMENT ISSUANCE AND BID OPENING WAS OTHER THAN SUFFICIENT FOR THE CONSIDERATION AND MODIFICATION OF BIDS.

ACCORDINGLY, YOUR PROTEST IS DENIED.