B-174538, JAN 20, 1972

B-174538: Jan 20, 1972

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SINCE IT WAS SPECIFICALLY STATED AND IS WELL ESTABLISHED THAT FAILURE TO ACKNOWLEDGE AMENDMENTS WILL RESULT IN BID REJECTION. WHILE YOU CLAIM TO HAVE SIGNED AND MAILED THE AMENDMENTS. WHEREIN WE SET FORTH THE PRINCIPLES UNDER WHICH OUR OFFICE MUST DECIDE CASES OF THIS TYPE: "THE ISSUE FOR OUR CONSIDERATION IS WHETHER. CHANGED THE REPORTING REQUIREMENTS UPON WHICH THE NUMBER OF COMPENSABLE FLIGHT HOURS ARE TO BE COMPUTED. IT WOULD NOT HAVE BEEN BOUND TO PERFORM IN FULL ACCORDANCE WITH ALL OF THE TERMS. WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.

B-174538, JAN 20, 1972

BID PROTEST - UNACKNOWLEDGED AMENDMENT DECISION DENYING PROTEST OF FONTANA AVIATION, INC., AGAINST THE AWARDS OF CONTRACTS TO LAND O'LAKES FLYING SERVICE AND GROGNET FLYING SERVICE UNDER AN IFB ISSUED BY THE FOREST SERVICE, EASTERN REGION, MILWAUKEE, WIS. SINCE IT WAS SPECIFICALLY STATED AND IS WELL ESTABLISHED THAT FAILURE TO ACKNOWLEDGE AMENDMENTS WILL RESULT IN BID REJECTION, THE COMP. GEN. HAS NO ALTERNATIVE BUT TO DENY THE PROTEST.

TO FONTANA AVIATION, INC.:

THE CHIEF OF PROCUREMENT MANAGEMENT, ADMINISTRATIVE SERVICES, FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, HAS FORWARDED FOR OUR REVIEW AND DECISION YOUR PROTEST AGAINST THE AWARDS OF CONTRACTS TO LAND O'LAKES FLYING SERVICE AND GROGNET FLYING SERVICE UNDER INVITATION FOR BIDS (IFB) NO. R9-72-504, ISSUED BY THE FOREST SERVICE, EASTERN REGION, MILWAUKEE, WISCONSIN.

THE IFB, ISSUED ON JULY 20, 1971, WITH BID OPENING SCHEDULED FOR AUGUST 19, 1971, SOLICITED BIDS FOR FURNISHING FIXED-WING AIRCRAFT WITH OBSERVER PILOT, INCLUDING ALL OPERATING SUPPLIES AND MAINTENANCE, FOR AERIAL FIRE DETECTION SERVICES IN THE NORTHERN AND SOUTHERN ZONES OF THE NICOLET NATIONAL FOREST. THE CONTRACTING OFFICER REJECTED YOUR BID SINCE YOU FAILED TO ACKNOWLEDGE, PRIOR TO BID OPENING, AMENDMENTS 1 AND 2 DATED JULY 26 AND AUGUST 2, 1971, RESPECTIVELY. BOTH AMENDMENTS WARNED OFFERORS THAT THE FAILURE TO ACKNOWLEDGE PRIOR TO BID OPENING MIGHT RESULT IN BID REJECTION. THE RECORD DISCLOSES THAT, WHILE YOU CLAIM TO HAVE SIGNED AND MAILED THE AMENDMENTS, THE CONTRACTING OFFICE DID NOT RECEIVE SAME PRIOR TO BID OPENING NOR DID YOUR BID REFLECT ANY ACKNOWLEDGMENT THEREOF.

WE QUOTE FROM OUR DECISION 51 COMP. GEN. (B-173563, NOVEMBER 12, 1971), WHEREIN WE SET FORTH THE PRINCIPLES UNDER WHICH OUR OFFICE MUST DECIDE CASES OF THIS TYPE:

"THE ISSUE FOR OUR CONSIDERATION IS WHETHER, UNDER THE CIRCUMSTANCES, A BIDDER'S FAILURE TO ACKNOWLEDGE THE AMENDMENT RENDERED ITS BID NONRESPONSIVE. OUR OFFICE HAS CONSISTENTLY HELD THAT A BIDDER'S FAILURE TO ACKNOWLEDGE A MATERIAL AMENDMENT RENDERS ITS BID NONRESPONSIVE. SEE 50 COMP. GEN. 11 (1970); 47 ID. 597 (1968). WE MUST DECIDE WHETHER THE *** BID IN THE ABSENCE OF AN ACKNOWLEDGMENT OF THE AMENDMENT WOULD BIND *** (THE) BIDDER TO PERFORMANCE IN FULL ACCORDANCE WITH THE TERMS, CONDITIONS, AND SPECIFICATIONS OF THE INVITATION, AS AMENDED. *** "

SEE SECTION 1-2-405 OF THE FEDERAL PROCUREMENT REGULATIONS.

WE BELIEVE THAT A REVIEW OF THE CONTENTS OF AMENDMENTS 1 AND 2 SUPPORTS THE CONCLUSION THAT THEY EFFECTED MATERIAL AND SIGNIFICANT CHANGES TO THE ORIGINALLY ADVERTISED REQUIREMENTS. AMENDMENT 1 INCREASED BY 15 DAYS THE PERIOD DURING WHICH THE AIRCRAFT HAD TO BE AVAILABLE ON 30 MINUTES' NOTICE; EXTENDED BY 15 DAYS THE PERIOD DURING WHICH THE AIRCRAFT HAD TO BE AVAILABLE ON 1 HOUR'S NOTICE; ALTERED THE PERIOD DURING WHICH THE AIRCRAFT HAD TO BE AVAILABLE ON 24 HOURS' NOTICE; AND CHANGED THE REPORTING REQUIREMENTS UPON WHICH THE NUMBER OF COMPENSABLE FLIGHT HOURS ARE TO BE COMPUTED. IN ADDITION, THE EFFECT OF AMENDMENTS 1 AND 2 READ TOGETHER REVERSED THE ESTIMATED FLIGHT TIMES EXPRESSED IN HOURS AND THE MINIMUM MONETARY GUARANTEES FOR THE NORTHERN AND SOUTHERN ZONES.

HAD YOUR FIRM BEEN AWARDED CONTRACTS FOR ONE OR BOTH GEOGRAPHICAL ZONES, IT WOULD NOT HAVE BEEN BOUND TO PERFORM IN FULL ACCORDANCE WITH ALL OF THE TERMS, CONDITIONS AND SPECIFICATIONS OF THE AMENDED IFB BY REASON OF THE FAILURE TO ACKNOWLEDGE THE TWO MATERIAL AMENDMENTS. IN VIEW THEREOF, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.