B-174155(1), FEB 18, 1972

B-174155(1): Feb 18, 1972

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PROTESTANT CONTENDS THAT ELROB'S BID WAS NONRESPONSIVE IN FAILING TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0003 CONCERNING THE FINAL DESTINATION FOR SUPPLIES. AN AMENDMENT WHICH IS MERELY A MATTER OF FORM AND DOES NOT AFFECT PRICE. AMENDMENT 0003 WAS ONE OF FORM RATHER THAN SUBSTANCE. THE CONTRACTING OFFICER HAS STATED THAT ELROB'S BID WOULD HAVE BEEN TIMELY RECEIVED BUT FOR THE OVERSIGHT OF THE BID CONTROL SECTION. IT APPEARS THAT ELROB'S BID WAS PROPERLY CONSIDERED AND THE PROTEST MUST BE DENIED. TO SILVER CREEK PRECISION CORPORATION: REFERENCE IS MADE TO YOUR TELEFAX OF SEPTEMBER 22. THE IFB WAS ISSUED ON JUNE 28. SUBSEQUENTLY FOUR AMENDMENTS TO THE SOLICITATION WERE ISSUED. THE FINAL VERSION OF THE IFB WAS FOR THE PROCUREMENT OF 18.

B-174155(1), FEB 18, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO ACKNOWLEDGE AMENDMENT - LATE BID DECISION DENYING PROTEST OF SILVER CREEK PRECISION CORPORATION AGAINST AWARD OF A CONTRACT TO ELROB MANUFACTURING CORPORATION UNDER AN IFB ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, PA., FOR A PROCUREMENT OF ANTENNAS. PROTESTANT CONTENDS THAT ELROB'S BID WAS NONRESPONSIVE IN FAILING TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0003 CONCERNING THE FINAL DESTINATION FOR SUPPLIES. AN AMENDMENT WHICH IS MERELY A MATTER OF FORM AND DOES NOT AFFECT PRICE, QUANTITY, QUALITY, DELIVERY, OR THE RELATIVE STANDING OF OTHER BIDDERS, CONSTITUTES A MINOR INFORMALITY AND MAY BE WAIVED UNDER THE PROVISIONS OF ASPR 2-405(IV)(B). AMENDMENT 0003 WAS ONE OF FORM RATHER THAN SUBSTANCE, AND THE FAILURE TO ACKNOWLEDGE DOES NOT COMPEL REJECTION SINCE ELROB CAN STILL BE REQUIRED TO PERFORM AT THE BID PRICE IN ACCORDANCE WITH ALL THE TERMS OF THE AMENDED SOLICITATION. FURTHER, THE CONTRACTING OFFICER HAS STATED THAT ELROB'S BID WOULD HAVE BEEN TIMELY RECEIVED BUT FOR THE OVERSIGHT OF THE BID CONTROL SECTION. THE COMP. GEN. HAS CONSISTENTLY HELD THAT IT WOULD BE UNFAIR TO PENALIZE A BIDDER BECAUSE OF THE GOVERNMENT'S IMPROPER ACTION. B 171002, APRIL 14, 1971. IN VIEW OF THE FOREGOING, IT APPEARS THAT ELROB'S BID WAS PROPERLY CONSIDERED AND THE PROTEST MUST BE DENIED.

TO SILVER CREEK PRECISION CORPORATION:

REFERENCE IS MADE TO YOUR TELEFAX OF SEPTEMBER 22, 1971, AND YOUR LETTER DATED OCTOBER 1, 1971, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) DAAB05-71 B-0634, ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE IFB WAS ISSUED ON JUNE 28, 1971, AND SUBSEQUENTLY FOUR AMENDMENTS TO THE SOLICITATION WERE ISSUED. THE FINAL VERSION OF THE IFB WAS FOR THE PROCUREMENT OF 18,559 ANTENNAS, AT-271-A/PRC. THE INVITATION INDICATED THAT THE BIDS SHOULD BE SUBMITTED ON AN FOB ORIGIN BASIS. BIDDERS WERE ADVISED THAT THE TRANSPORTATION COSTS TO BE BORNE BY THE GOVERNMENT WOULD, HOWEVER, BE ADDED TO THE BID PRICE IN DETERMINING THE OVERALL COST OF THE SUPPLIES TO THE GOVERNMENT AND IN EVALUATING THE MOST FAVORABLE BID, PRICE AND OTHER FACTORS CONSIDERED. PROVISION D.4 OF THE IFB STATED THAT:

"FOR THE PURPOSE OF EVALUATING BIDS *** AND FOR NO OTHER PURPOSE, THE FINAL DESTINATIONS) FOR THE SUPPLIES WILL BE CONSIDERED AS FOLLOWS: ."

HOWEVER, THE NAME OF A DESTINATION WAS INADVERTENTLY OMITTED BY THE GOVERNMENT. AMENDMENT 0003 ISSUED JULY 26, 1971, CORRECTED THIS OMISSION AND STATED THAT TOBYHANNA, PENNSYLVANIA, WOULD BE CONSIDERED AS THE FINAL DESTINATION FOR THE PURPOSE OF EVALUATING BIDS. ALL BIDDERS WERE REQUIRED TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT.

THE BASIS FOR YOUR PROTEST AS THE FIFTH LOW BIDDER IS YOUR CONTENTION THAT YOUR BID WAS THE ONLY RESPONSIVE BID TO THE SUBJECT SOLICITATION, SINCE YOUR BID WAS THE ONLY ONE OF THE 13 SUBMITTED WHICH ACKNOWLEDGED RECEIPT OF ALL FOUR AMENDMENTS. IN PARTICULAR, THE LOW BIDDER, ELROB MANUFACTURING CORPORATION (ELROB) FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0003. ELROB ALLEGES THAT THIS FAILURE WAS DUE TO THE FACT THAT IT DID NOT RECEIVE AMENDMENT 0003 PRIOR TO BID OPENING.

THE PROCURING ACTIVITY HAS TAKEN THE POSITION THAT AMENDMENT 0003 WAS ONLY INFORMATIONAL, AND IMPOSED NO CHANGES TO THE REQUIREMENTS CONTAINED IN THE IFB. THE AGENCY CONTENDS, THEREFORE, THAT ELROB'S FAILURE TO ACKNOWLEDGE THE AMENDMENT DID NOT AFFECT PRICE, QUANTITY, QUALITY, DELIVERY OR THE RELATIVE STANDING OF BIDDERS UNDER THE PROCUREMENT, AND THAT SUCH DEVIATION CONSTITUTED A MINOR INFORMALITY WHICH COULD BE WAIVED IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 405(IV)(B). A MINOR INFORMALITY HAS BEEN DEFINED AS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS. SEE B-168531, DECEMBER 30, 1969. SEE ALSO PARAGRAPH 10(B) OF THE INSTRUCTIONS, CONDITIONS AND NOTICES TO OFFERORS OF THE SUBJECT IFB, WHICH RESERVES THE GOVERNMENT'S RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED.

CONCERNING THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT PRIOR TO BID OPENING, AS REQUIRED BY THE TERMS OF THE ORIGINAL IFB AND THE TERMS OF THE AMENDMENT, ASPR 2-405(IV)(B) PROVIDES THAT SUCH FAILURE MAY BE CONSIDERED AS A MINOR INFORMALITY WHICH MAY BE WAIVED ONLY IF "THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, DELIVERY OR THE RELATIVE STANDING OF BIDDERS *** ." IN THIS REGARD WE HAVE HELD THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT DOES NOT REQUIRE THE REJECTION OF ITS BID IF IT CAN BE SHOWN THAT THE BIDDER, UPON ACCEPTANCE OF THE BID, COULD BE REQUIRED TO PERFORM AT THE BID PRICE IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS OF THE INVITATION, AS AMENDED. SEE B-171741, JULY 27, 1971; 48 COMP. GEN. 555, 558, 559 (1969). UNDER SUCH CIRCUMSTANCES THE GOVERNMENT'S ACCEPTANCE WOULD NOT VIOLATE THE REQUIREMENT RESTRICTING ACCEPTANCE TO THOSE BIDS WHICH COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION.

IN THE INSTANT CASE WE FIND THAT AMENDMENT 0003, WHICH MERELY DESIGNATED THE LOCATION OF THE FINAL DESTINATION OF THE ANTENNAS FOR THE PURPOSE OF EVALUATING BIDS, HAD NO EFFECT ON THE PERFORMANCE REQUIRED BY THE IFB, AND ELROB COULD BE REQUIRED, UPON ACCEPTANCE OF ITS BID AS SUBMITTED, TO PERFORM IN ACCORDANCE WITH THE INVITATION AS AMENDED.

IN ADDITION TO REQUIRING A DETERMINATION THAT THE AMENDMENT WOULD NOT AFFECT THE PERFORMANCE REQUIRED BY THE IFB, ASPR 2-405(IV)(B) REQUIRED A DETERMINATION THAT THE AMENDMENT WOULD NOT AFFECT THE RELATIVE STANDING OF BIDDERS. GENERALLY, A DETERMINATION OF THE STANDING OF BIDDERS IS BASED ON AN EVALUATION OF BID PRICES AND OTHER FACTORS. IN THIS INSTANCE, OTHER FACTORS INCLUDED THE COST OF TRANSPORTATION TO THE GOVERNMENT FROM THE STATED FOB ORIGIN POINT DESIGNATED BY EACH BIDDER TO THE GOVERNMENT'S STATED FINAL DESTINATION.

IN ORDER TO DETERMINE WHETHER AN AMENDMENT AFFECTS THE RELATIVE STANDING OF BIDDERS THERE MUST BE A COMPARISON OF THE EVALUATED ORDER OF BIDDERS, BEFORE APPLICATION OF THE AMENDMENT, WITH THE EVALUATED ORDER OF BIDDERS AFTER APPLICATION OF THE AMENDMENT. WE ARE OF THE OPINION THAT THE COST OF TRANSPORTATION TO THE GOVERNMENT TO THE TENTATIVE FINAL DESTINATION INDICATED IN THE AMENDMENT CAN HAVE NO EFFECT ON THE RELATIVE STANDING OF BIDDERS, SINCE AN EVALUATED ORDER OF BIDDERS COULD NOT BE DETERMINED UNDER THE TERMS OF THE INVITATION UNTIL THE COST OF TRANSPORTATION WAS ADDED TO THE FOB ORIGIN BID PRICE GIVEN BY EACH BIDDER.

IN VIEW OF THE FOREGOING WE BELIEVE THAT AMENDMENT 0003 WAS ONE OF FORM RATHER THAN OF SUBSTANCE, AND THE FAILURE TO ACKNOWLEDGE THE AMENDMENT MAY BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY IN ELROB'S BID. FURTHER, SINCE WE HAVE FOUND THAT ELROB'S LOW BID WAS RESPONSIVE, YOUR CONTENTIONS CONCERNING THE RESPONSIVENESS OF THE OTHER BIDS NEED NOT BE ADDRESSED BY THIS OFFICE.

FINALLY, WITH REGARD TO YOUR CONTENTION THAT ELROB'S BID WAS A LATE BID, WE HAVE BEEN INFORMED BY THE PROCUREMENT AGENCY THAT THE BID WAS DELIVERED TO THE CONTRACTING OFFICER AT APPROXIMATELY 2:30 P.M., AUGUST 31, 1971. THE BID WAS FIRST TIME AND DATE STAMPED AT APPROXIMATELY 1:00 P.M., AUGUST 31, 1971, BY THE AGENCY'S RECEPTIONIST. THE BID WAS THEN HAND CARRIED TO THE PROCUREMENT ADMINISTRATIVE SERVICES SECTION BY AN EMPLOYEE OF THE AGENCY AND THE BID WAS RECEIVED THERE BY A SUBSTITUTE BID CONTROL CLERK, WHO TIME AND DATE STAMPED THE BID AT 1:03 P.M., AUGUST 31, 1971. HOWEVER, THE CLERK DID NOT IMMEDIATELY TAKE THE BID PACKAGE AND INSERT IT INTO THE FOLDER FOR THE 2:00 P.M. BID OPENING. IN VIEW THEREOF, IT IS THE POSITION OF THE CONTRACTING OFFICER THAT THE BID WOULD HAVE BEEN RECEIVED IN TIME FOR BID OPENING BUT FOR THE OVERSIGHT BY THE BID CONTROL SECTION.

WE HAVE HELD THAT WHERE A PROCUREMENT ACTIVITY DEMONSTRATES THAT A BID WAS RECEIVED IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE IFB BY THE TIME SET FOR OPENING AND WHERE THE ACTIVITY CONCEDES THAT THE BID WOULD HAVE BEEN IN THE BID OPENING ROOM ON TIME BUT FOR THE MISHANDLING WITHIN THE GOVERNMENT INSTALLATION, IT WOULD NOT BE FAIR TO PENALIZE THE BIDDER BECAUSE OF THE GOVERNMENT'S IMPROPER ACTION. 171002, APRIL 14, 1971. SEE ALSO ASPR 2 303.3(A)(II) AND PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS OF THE INSTANT IFB. WE MUST THEREFORE CONCLUDE THAT THE DECISION OF THE CONTRACTING OFFICER TO OPEN AND CONSIDER ELROB'S BID WAS PROPER.

ACCORDINGLY, YOUR PROTEST IS DENIED.