B-172631, JUN 10, 1971

B-172631, JUN 10, 1971

BID PROTEST - BID RESPONSIVENESS - AMENDMENTS DENIAL OF PROTEST OF CHEMCUT CORPORATION AGAINST REJECTION OF THEIR BID AND AWARD TO PESEK ENGINEERING AND MANUFACTURING COMPANY OF A CONTRACT FOR A DOUBLE-SIDED ETCHER UNDER AN IFB ISSUED BY U.S. ARMY MISSILE COMMAND. ALTHOUGH PROTESTANT DID NOT RECEIVE THE AMENDMENT TO IFB, THE RECORD SHOWS THAT IT WAS MAILED. FACT OF NONRECEIPT DOES NOT WAIVE THE ACKNOWLEDGMENT REQUIREMENT; THEREFORE, THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

TO CHEMCUT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1971, PROTESTING THE REJECTION OF YOUR COMPANY'S BID AND THE AWARD MADE UNDER INVITATION FOR BIDS NO. DAAH03-71-B-0049, ISSUED JANUARY 14, 1971, BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.

THE INVITATION CALLED FOR A CONVEYORIZED HORIZONTAL DOUBLE-SIDED SPRAY ETCHER FOR FABRICATING PRINTED CIRCUIT BOARDS FROM 4" X 4" TO 24" BY INDEFINITE LENGTH, CHEMCUT CORPORATION MODEL 1000 OR EQUAL. AMENDMENT NO. 0001 WAS ISSUED ON FEBRUARY 1, 1971, CHANGING THE REQUIREMENT TO "ONE CONVEYORIZED ETCHER - A HORIZONTAL DOUBLE-SIDED SPRAY ETCHER FOR FABRICATING PRINTED CIRCUIT BOARDS FROM 4 X 4 INCHES TO 15 INCHES BY INDEFINITE LENGTH." THE AMENDMENT ALSO ESTABLISHED THE FOLLOWING MAXIMUM DIMENSIONS: 60 INCHES LONG BY 35 INCHES HIGH BY 42 INCHES WIDE. FINALLY, THE ITEM OFFERED WAS TO BE CHEMCUT CORPORATION MODEL 315 OR EQUIVALENT. THE OPENING DATE WAS EXTENDED TO FEBRUARY 16, 1971.

BIDS WERE OPENED AS SCHEDULED. PESEK ENGINEERING AND MANUFACTURING COMPANY (PEMCO) SUBMITTED A BID, AS AMENDED BY LETTER DATED FEBRUARY 8, 1971, TO COMPLY WITH THE AMENDMENT TO THE IFB, OFFERING A V-15 CONVEYORIZED SPRAY ETCHER WITH ONE SET OF AIR DRY TUBES AT A UNIT PRICE OF $4,835. THE LETTER INCLUDED THIS NOTATION "TO COMPLY SPECIFICATIONS, OUR MACHINE WILL BE 60" LONG, 41" WIDE AND 35" HIGH."

IN YOUR LETTER YOU CONTEND THAT THE AWARD SHOULD BE CANCELLED FOR THE FOLLOWING REASONS:

"1. THE AMENDMENT OF THE ABOVE REFERENCED SOLICITATION DATED 1 FEBRUARY 1971 WAS NEVER RECEIVED BY CHEMCUT AND ACCORDINGLY WE DID NOT HAVE AN OPPORTUNITY TO SUBMIT AN AMENDED PRICE.

"2. THE AMENDMENT DATED 1 FEBRUARY 1971 SPECIFICALLY SPECIFIED THAT THE UNIT TO BE SUPPLIED MUST NOT EXCEED 60" LONG, 36" WIDE AND 30" HIGH. THE AWARD MADE TO PESEK ENGINEERING AND MANUFACTURING COMPANY IS FOR A UNIT 61" LONG, 41" WIDE, AND 26" HIGH."

AFTER BID OPENING, A TECHNICAL REVIEW AND EVALUATION WAS PERFORMED RESULTING IN A DETERMINATION THAT PESEK MODEL V-15 WITH ONE SET OF AIR DRY TUBES, WAS EQUIVALENT TO THE CHEMCUT MODEL 315 AND AWARD WAS MADE TO PESEK ON MARCH 24, 1971. WE FIND NOTHING IN THE RECORD TO INDICATE THAT THE LOW BID WAS NOT RESPONSIVE TO THE TERMS OF THE INVITATION.

IT IS REGRETTABLE THAT YOU DID NOT RECEIVE THE AMENDMENT TO THE INVITATION. HOWEVER, IT IS WELL SETTLED THAT WHEN AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE BIDDER'S FAILURE TO ACKNOWLEDGE THE AMENDMENT IN COMPLIANCE WITH THE TERMS OF THE INVITATION OR AMENDMENT CANNOT BE WAIVED. 37 COMP. GEN. 785 (1958). THE BASIS FOR THE GENERAL RULE IS THE PRINCIPLE THAT THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION AS AMENDED, WOULD BE PREJUDICIAL TO OTHER BIDDERS. CLARIFICATION OF THE BID AFTER OPENING MAY NOT BE PERMITTED BECAUSE THE BIDDER IN SUCH CIRCUMSTANCES WOULD HAVE THE OPTION TO DECIDE TO BECOME ELIGIBLE BY FURNISHING EXTRANEOUS EVIDENCE THAT THE AMENDMENT HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. 41 COMP. GEN. 550 (1962) AND CASES CITED THEREIN.

THE ADMINISTRATIVE REPORT SHOWS THAT YOUR COMPANY WAS MAILED THE AMENDMENT. THE FACT THAT THE AMENDMENT WAS NOT RECEIVED DOES NOT PROVIDE A BASIS FOR WAIVING THE FAILURE TO ACKNOWLEDGE THE AMENDMENT. IN THAT CONNECTION, IT WAS STATED IN 40 COMP. GEN. 126 (1960) AT PAGE 128, THAT -

" *** WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR A MODIFICATION THEREOF AFTER THE TIME FIXED FOR OPENING. *** "

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE REJECTION OF YOUR COMPANY'S BID WAS PROPER IN THE CIRCUMSTANCES. THE PROTEST IS ACCORDINGLY DENIED.