B-174918, JUL 5, 1972

B-174918: Jul 5, 1972

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ASPR 2-208(A) ONLY REQUIRES THAT AMENDMENTS BE SENT TO FIRMS TO WHOM INVITATIONS HAVE BEEN FURNISHED. SINCE HARBE'S BID WAS UNSOLICITED AND THERE IS NO EVIDENCE THAT IT EVER ADVISED AGENCY PERSONNEL OF ITS INTENTION TO SUBMIT A BID. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21. WAS NONRESPONSIVE FOR FAILURE TO RESPOND TO FOUR AMENDMENTS TO THE IFB. HARBE WAS NOT NOTIFIED OF THE REJECTION OF THIS BID UNTIL DECEMBER 6. SOME 90 DAYS AFTER IT WAS SUBMITTED. THE GIST OF ITS PROTEST IS THAT THE CONTRACTING OFFICER SHOULD HAVE KNOWN IT HAD SUBMITTED A TIMELY BID (BID OPENING WAS ON OCTOBER 15. 1971) AND HE SHOULD HAVE SENT HARBE THE AMENDMENTS. A COPY OF WHICH WAS PROVIDED TO HARBE FOR COMMENTS.

B-174918, JUL 5, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO RESPOND TO AMENDMENTS DECISION DENYING THE PROTEST OF HARBE ENGINEERING, INC., AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY FOR FAILING TO RESPOND TO FOUR AMENDMENTS. ASPR 2-208(A) ONLY REQUIRES THAT AMENDMENTS BE SENT TO FIRMS TO WHOM INVITATIONS HAVE BEEN FURNISHED. SINCE HARBE'S BID WAS UNSOLICITED AND THERE IS NO EVIDENCE THAT IT EVER ADVISED AGENCY PERSONNEL OF ITS INTENTION TO SUBMIT A BID, THE PROTEST MUST BE DENIED. PERSONNEL OF ITS INTENTION TO SUBMIT A BID, THE PROTEST MUST BE DENIED.

TO HARBE ENGINEERING, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1971, PROTESTING AGAINST THE DETERMINATION BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY (APSA) THAT YOUR BID, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) DAAA09-72-B-0040, WAS NONRESPONSIVE FOR FAILURE TO RESPOND TO FOUR AMENDMENTS TO THE IFB.

HARBE STATES THAT IT REQUESTED A BID SET FROM THE PROCUREMENT ACTIVITY AND, UPON BEING ADVISED THAT THE SUPPLY HAD BEEN EXHAUSTED, SUBMITTED A LETTER BID ON SEPTEMBER 13, 1971. HARBE WAS NOT NOTIFIED OF THE REJECTION OF THIS BID UNTIL DECEMBER 6, 1971, SOME 90 DAYS AFTER IT WAS SUBMITTED, AND THE GIST OF ITS PROTEST IS THAT THE CONTRACTING OFFICER SHOULD HAVE KNOWN IT HAD SUBMITTED A TIMELY BID (BID OPENING WAS ON OCTOBER 15, 1971) AND HE SHOULD HAVE SENT HARBE THE AMENDMENTS.

THE ADMINISTRATIVE REPORT, A COPY OF WHICH WAS PROVIDED TO HARBE FOR COMMENTS, RECOMMENDS THAT THE PROTEST BE DENIED. WE AGREE.

ASPA MAINTAINS THAT THERE IS NO RECORD OF HARBE'S EVER HAVING REQUESTED, EITHER ORALLY OR IN WRITING, THE BID SET OR SUBSEQUENT AMENDMENTS OR IN ANY MANNER ADVISING APSA PROCUREMENT PERSONNEL THAT IT INTENDED TO SUBMIT A BID. STATEMENTS BY ALL OFFICE PERSONNEL INVOLVED IN HANDLING THE IFB SUPPORT THIS POSITION. IN VIEW OF THEIR STATEMENTS AND THE ABSENCE OF EVIDENCE TO THE CONTRARY, WE CANNOT CONCLUDE THAT THE APSA PROCUREMENT PERSONNEL WERE AWARE OF HARBE'S INTEREST IN THE PROCUREMENT PRIOR TO THE SUBMISSION OF ITS BID.

EVEN AFTER THE SUBMISSION OF YOUR LETTER BID, HOWEVER, THE PROCUREMENT PERSONNEL AT APSA WOULD NOT KNOW OF HARBE'S INTEREST IN THE PROCUREMENT UNLESS SPECIAL INQUIRY WAS MADE SINCE BIDS ARE RECEIVED BY A BID CUSTODIAN WHO DOES NOT, UNDER USUAL CIRCUMSTANCES, NOTIFY THE CONTRACTING OFFICER OR PERSONNEL OF THE NUMBER OR IDENTITY OF BIDS RECEIVED. THERE APPARENTLY WAS NO INQUIRY MADE IN THIS CASE AND, ORDINARILY, THE CONTRACTING OFFICER DOES NOT MAKE PRE-BID-OPENING INQUIRIES.

PARAGRAPH 2-208(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT AMENDMENTS BE SENT TO ALL PROSPECTIVE BIDDERS, THAT IS, "TO EVERYONE TO WHOM INVITATIONS HAVE BEEN FURNISHED." THIS WAS DONE, BUT SINCE NO INVITATION HAD BEEN SENT TO HARBE IN THE FIRST PLACE, THE FURNISHING OF THE AMENDMENTS TO HARBE WAS NOT POSSIBLE. THE PROCUREMENT ACTIVITY CANNOT BE FAULTED, HOWEVER, FOR FOLLOWING THE ASPR PROCEDURE.

SINCE AMENDMENT 0003 TO THE IFB ADDED AN ADDITIONAL ITEM FOR PROCUREMENT, THIS AMENDMENT WOULD HAVE A SUBSTANTIAL IMPACT ON THE PRICE OF BIDS SUBMITTED AND, HENCE, THE FAILURE TO ACKNOWLEDGE IT CANNOT BE WAIVED AS A MINOR INFORMALITY. SEE ASPR 2-405(IV)(B). ABSENT A BASIS FOR MAKING SUCH A WAIVER, WE BELIEVE THE CONTRACTING OFFICER WAS JUSTIFIED IN REJECTING YOUR BID AS NONRESPONSIVE.

THE FACT THAT YOU NEVER HAD AN OPPORTUNITY TO ACKNOWLEDGE THE AMENDMENTS BECAUSE THEY WERE NOT SENT DOES NOT CHANGE THE OUTCOME OF THE PROTEST. CF. B-171797, APRIL 15, 1971. NOR DOES THE FACT THAT HARBE IS A ACCORDINGLY, THE PROTEST IS DENIED.