B-172794, JUL 19, 1971

B-172794: Jul 19, 1971

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THE PROTEST IS THEREFORE DENIED. TO VICTORY CONTAINER CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 29 AND LETTER DATED MAY 4. WAS FOR A REQUIREMENTS TYPE CONTRACT FOR CORRUGATED AND SOLID FIBERBOARD BOXES. WHICH WAS ORIGINALLY JUNE 15. WAS EXTENDED SEVERAL TIMES DUE TO THE ISSUANCE OF FIVE AMENDMENTS TO THE SOLICITATION. IT WAS NOT UNTIL DECEMBER 1. THAT THE BIDS WERE OPENED. AT WHICH TIME IT WAS DISCOVERED THAT YOU HAD FAILED TO ACKNOWLEDGE AMENDMENTS NO. 4 AND 5. MADE SEVERAL OTHER CHANGES WHICH WILL BE DISCUSSED LATER. IT IS YOUR CONTENTION THAT AMENDMENTS NO. 4 AND 5 DID NOT AFFECT THE PRICE OF ANY ITEM. IT WAS INCUMBENT ON GSA TO QUESTION YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 4 BEFORE MAILING AMENDMENT NO. 5.

B-172794, JUL 19, 1971

BID PROTEST - BID RESPONSIVENESS - ACKNOWLEDGEMENT OF AMENDMENTS DECISION DENYING PROTEST BY VICTORY CONTAINER CORPORATION AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO A SOLICITATION ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR CORRUGATED AND SOLID FIBERBOARD BOXES. WHILE FAILURE OF PROTESTANT TO RECEIVE THE AMENDMENTS DOES NOT JUSTIFY ACCEPTANCE OF ITS BID THE FAILURE TO ACKNOWLEDGE AMENDMENTS WHICH EFFECT THE PRICE OF THE PROCUREMENT MUST RENDER THE BID NONRESPONSIVE. THE PROTEST IS THEREFORE DENIED.

TO VICTORY CONTAINER CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 29 AND LETTER DATED MAY 4, 1971, WITH ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT UNDER SOLICITATION NO. CHN-FT-969, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

SOLICITATION NO. CHN-FT-969, ISSUED ON MAY 13, 1970, WAS FOR A REQUIREMENTS TYPE CONTRACT FOR CORRUGATED AND SOLID FIBERBOARD BOXES. THE BID OPENING DATE, WHICH WAS ORIGINALLY JUNE 15, 1970, WAS EXTENDED SEVERAL TIMES DUE TO THE ISSUANCE OF FIVE AMENDMENTS TO THE SOLICITATION, AND IT WAS NOT UNTIL DECEMBER 1, 1970, THAT THE BIDS WERE OPENED, AT WHICH TIME IT WAS DISCOVERED THAT YOU HAD FAILED TO ACKNOWLEDGE AMENDMENTS NO. 4 AND 5. AMENDMENT NO. 4 MERELY POSTPONED THE TIME OF BID OPENING AND FAILURE OF A BIDDER TO ACKNOWLEDGE THIS AMENDMENT WOULD, OF COURSE, NOT MAKE HIS BID NONRESPONSIVE. HOWEVER, AMENDMENT NO. 5, IN ADDITION TO CHANGING THE CONTRACT PERIOD, MADE SEVERAL OTHER CHANGES WHICH WILL BE DISCUSSED LATER. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT YOUR FAILURE TO ACKNOWLEDGE AMENDMENT NO. 5 RENDERED YOUR BID NONRESPONSIVE.

IT IS YOUR CONTENTION THAT AMENDMENTS NO. 4 AND 5 DID NOT AFFECT THE PRICE OF ANY ITEM. ADDITIONALLY, YOU QUESTION THE PROCEDURES USED BY THE CHICAGO REGIONAL OFFICE OF GSA. YOU STATE THAT IN VIEW OF THE FACT YOU HAD ACKNOWLEDGED RECEIPT OF AMENDMENTS NO. 1, 2, AND 3, IT WAS INCUMBENT ON GSA TO QUESTION YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 4 BEFORE MAILING AMENDMENT NO. 5.

AMENDMENT NO. 5 UPDATED FIVE IMPORTANT GSA AND STANDARD FORMS INCORPORATED BY REFERENCE IN THE BID, CHANGED THE SPECIFICATIONS IN CERTAIN RESPECTS, CHANGED CERTAIN OF THE PACKING PROVISIONS, AND DELETED 25 ITEMS. WE ARE ADVISED BY THE PROCURING ACTIVITY THAT THESE CHANGES SHOULD AFFECT BID PRICES, AND THE RECORD LENDS SUPPORT TO THIS CONCLUSION. ADDITIONALLY, THERE CAN BE NO DOUBT THAT THE PROVISIONS OF GSA AND STANDARD CONTRACT FORMS MUST BE CONSIDERED MATERIAL, AND THAT THE SUBSTITUTION OF REVISED EDITIONS OF SUCH FORMS MUST THEREFORE BE CONSIDERED A MATERIAL CHANGE IN THE INVITATION.

THIS OFFICE HAS HELD THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THE AMENDMENT RENDERS THE BID NONRESPONSIVE. B 169897, AUGUST 26, 1970; B-164016, MAY 28, 1968; 37 COMP. GEN. 785 (1958). IF, AS IN THE PRESENT CASE, AN AMENDMENT WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS NOT ACKNOWLEDGED BY THE BIDDER PRIOR TO BID OPENING, HIS OFFER IS FOR SOMETHING OTHER THAN THE PERFORMANCE SOLICITED BY THE TERMS OF THE INVITATION, INCLUDING ANY AMENDMENTS. THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION, AS AMENDED, WOULD NOT OBLIGATE THE BIDDER TO PERFORM IN ACCORDANCE WITH THE AMENDMENT, AND WOULD BE PREJUDICIAL TO OTHER BIDDERS. B-164016, MAY 28, 1968.

IN REGARD TO YOUR CRITICISM OF THE PROCEDURES USED BY THE GSA CHICAGO REGIONAL OFFICE IN MAILING OUT THE AMENDMENTS, WE ARE ADVISED THAT COMPUTERIZED MAILING LISTS ARE USED IN PROVIDING PROSPECTIVE BIDDERS WITH COPIES OF SOLICITATIONS AND AMENDMENTS TO THE SOLICITATIONS. THE CONTRACTING OFFICER PROVIDES A COPY OF THE AMENDMENT, AND THE NUMBER OF THE MAILING LIST TO BE USED, TO PERSONNEL WHOSE DUTY IT IS TO RUN OFF THE LIST, PRINT THE SOLICITATION OR AMENDMENT, AND MAIL THE DOCUMENTS. WHEN THE BIDS AND RECEIPTED AMENDMENTS ARE RECEIVED FROM THE BIDDERS, THEY ARE RETAINED IN THE BUSINESS SERVICE CENTER IN THE CHICAGO REGIONAL OFFICE UNDER LOCK AND KEY UNTIL BID OPENING TIME. CONSEQUENTLY, THE CONTRACTING OFFICER HAS NO MEANS OF ASCERTAINING WHICH FIRMS HAVE SUBMITTED BIDS OR WHICH FIRMS HAVE ACKNOWLEDGED OR FAILED TO ACKNOWLEDGE AMENDMENTS. THE PROCURING ACTIVITY CONSIDERS THESE PROCEDURES NECESSARY IN ORDER TO INSURE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM. HOWEVER, IT IS STATED IN THE ADMINISTRATIVE REPORT THAT THE RECORDS OF THE CHICAGO REGIONAL OFFICE INDICATE THAT BOTH AMENDMENTS NO. 4 AND 5 WERE MAILED TO YOU AND THAT NEITHER AMENDMENT HAD BEEN RETURNED TO THAT OFFICE.

IN VIEW THEREOF, AND SINCE WE HAVE HELD IN SITUATIONS SIMILAR TO THE PRESENT CASE THAT FAILURE OF THE BIDDER TO RECEIVE THE AMENDMENT WOULD NOT JUSTIFY ACCEPTANCE OF THE BID (SEE B-169897, AUGUST 26, 1970; 40 COMP. GEN. 126 (1960)), WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND YOUR PROTEST MUST BE DENIED.