B-175199, MAY 19, 1972

B-175199: May 19, 1972

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THE GOVERNMENT'S FAILURE TO PROVIDE AN INVITATION OR AMENDMENT TO A PROSPECTIVE BIDDER IS NOT A SUFFICIENT BASIS FOR QUESTIONING AN OTHERWISE VALID AWARD. THE ORIGINAL IFB WAS ISSUED TO EIGHTY FIRMS FOR OPENING ON APRIL 20. YOU REQUESTED ASO TO EXTEND THE DATE FOR OPENING OF BIDS BY TWO WEEKS BECAUSE YOUR ATTEMPT TO SUBMIT A BID WAS DELAYED BY EFFORTS TO OBTAIN NECESSARY INFORMATION. QUESTIONS CONCERNING THE SPECIFICATIONS OF THE IFB WERE RAISED BY SEVERAL POTENTIAL BIDDERS. OPENING DATE FOR BIDS WAS DELAYED INDEFINITELY IN AMENDMENT NO. 0001. ADDITIONS AND CLARIFICATIONS WERE MADE TO THE SPECIFICATIONS AND DRAWINGS AND BID OPENING DATE WAS SET FOR NOVEMBER 16. NEITHER OF THE AMENDMENTS WAS SENT TO YOUR FIRM.

B-175199, MAY 19, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO ACKNOWLEDGE AMENDMENT DECISION DENYING THE PROTEST OF ALLISON MANUFACTURING COMPANY AGAINST AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN IFB ISSUED BY THE NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PA., FOR A QUANTITY OF AIRCRAFT ANTI -SKID TEST SETS. THE GOVERNMENT'S FAILURE TO PROVIDE AN INVITATION OR AMENDMENT TO A PROSPECTIVE BIDDER IS NOT A SUFFICIENT BASIS FOR QUESTIONING AN OTHERWISE VALID AWARD, ABSENT EVIDENCE OF SPECIFIC INTENT TO EXCLUDE THE BIDDER. SINCE GAO HAS CONSISTENTLY UPHELD DETERMINATIONS OF NONRESPONSIVENESS FOR FAILURE TO ACKNOWLEDGE AN AMENDMENT WHICH AFFECTS THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT, THE PROTEST MUST BE DENIED.

TO ALLISON MANUFACTURING COMPANY:

WE REFER TO YOUR LETTERS OF FEBRUARY 11, 1972, AND APRIL 27, 1972, PROTESTING AGAINST AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. N00383-71-C-0632, ISSUED MARCH 19, 1971, BY THE AVIATION SUPPLY OFFICE (ASO), DEPARTMENT OF THE NAVY, PHILADELPHIA, PENNSYLVANIA, FOR A QUANTITY OF AIRCRAFT ANTI-SKID TEST SETS.

THE ORIGINAL IFB WAS ISSUED TO EIGHTY FIRMS FOR OPENING ON APRIL 20, 1971. ALTHOUGH YOUR COMPANY DID NOT RECEIVE THE INVITATION, YOU APPARENTLY KNEW ABOUT THE IFB AND WISHED TO SUBMIT A BID. IN A LETTER OF APRIL 9, 1971, YOU REQUESTED ASO TO EXTEND THE DATE FOR OPENING OF BIDS BY TWO WEEKS BECAUSE YOUR ATTEMPT TO SUBMIT A BID WAS DELAYED BY EFFORTS TO OBTAIN NECESSARY INFORMATION. THE CONTRACTING OFFICER STATES THAT DURING THE PERIOD BEFORE THE ORIGINAL OPENING DATE, QUESTIONS CONCERNING THE SPECIFICATIONS OF THE IFB WERE RAISED BY SEVERAL POTENTIAL BIDDERS. FOR THE ABOVE REASONS, OPENING DATE FOR BIDS WAS DELAYED INDEFINITELY IN AMENDMENT NO. 0001, ISSUED APRIL 19, 1972. AFTER EXTENSION OF THE TIME FOR OPENING OF BIDS ANOTHER POTENTIAL BIDDER SUBMITTED WRITTEN QUERIES CONCERNING THE ADEQUACY OF THE SPECIFICATIONS. IN AMENDMENT NO. 0002, ISSUED NOVEMBER 2, 1971, ADDITIONS AND CLARIFICATIONS WERE MADE TO THE SPECIFICATIONS AND DRAWINGS AND BID OPENING DATE WAS SET FOR NOVEMBER 16, 1971. NEITHER OF THE AMENDMENTS WAS SENT TO YOUR FIRM.

IN THE ADMINISTRATIVE REPORT, A COPY OF WHICH WAS FURNISHED TO YOU, THE CONTRACTING OFFICER STATES THAT THE LATTER AMENDMENT WAS A MATERIAL PART OF THE IFB. WE FIND NO BASIS FOR DISAGREEING WITH THIS DETERMINATION.

YOUR COMPANY'S BID AT $2,105 PER UNIT WAS THE LOWEST OF FIVE BIDS SUBMITTED UNDER THE IFB. NONETHELESS, ON FEBRUARY 7, 1972, A CONTRACT WAS AWARDED TO THE SECOND LOW BIDDER AT A PRICE OF $2,363 PER UNIT. ON THE SAME DAY YOU WERE NOTIFIED THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENTS. THE CONTRACTING OFFICER HAS EXPLAINED THAT, ALTHOUGH FAILURE TO ACKNOWLEDGE RECEIPT OF THE FIRST AMENDMENT CONCERNING EXTENSION OF BID OPENING DATE COULD HAVE BEEN WAIVED UNDER CLAUSE 10(B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS AS A MINOR INFORMALITY, FAILURE TO ACKNOWLEDGE RECEIPT OF THE SECOND AMENDMENT CONTAINING ADDITIONS AND CLARIFICATIONS TO THE SPECIFICATIONS AFFECTING THE PRICE AND QUALITY OF AN AWARD WAS A MATERIAL DEVIATION WHICH COULD NOT HAVE BEEN WAIVED.

ASO ALSO PROVIDES THE FOLLOWING EXPLANATION FOR THE FACT THAT IT DID NOT SEND THE AMENDMENTS TO YOUR FIRM EVEN AFTER YOU HAD GIVEN NOTICE IN YOUR LETTER OF APRIL 9, 1971, OF YOUR INTENTION TO SUBMIT A BID UNDER THE IFB. A "LIST OF TENDERS" IS NORMALLY PREPARED FOR EACH IFB CONTAINING THE NAMES AND ADDRESSES OF ALL FIRMS TO WHICH THE ORIGINAL IFB IS SENT, OF ALL FIRMS WHO SUBSEQUENTLY REQUEST A COPY OF THE IFB, AND OF ALL FIRMS RESPONDING TO THE SOLICITATION. THE NAME OF YOUR FIRM WAS NOT ON THE ORIGINAL MAILING LIST NOR DID YOU REQUEST YOUR COPY OF THE IFB FROM ASO. THEREFORE YOUR FIRM WAS NOT PLACED ON THE LIST, ALSO USED FOR SENDING AMENDMENTS, UNTIL YOUR BID WAS OPENED ON NOVEMBER 16, 1971.

YOU PROTEST AGAINST THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE ON ACCOUNT OF THE FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENTS WHICH YOU DID NOT RECEIVE OR KNOW EXISTED.

IT IS REGRETTABLE THAT YOUR FIRM DID NOT RECEIVE COPIES OF THE AMENDMENTS. HOWEVER, OUR OFFICE HAS RULED CONSISTENTLY THAT FAILURE TO PROVIDE AN INVITATION OR AMENDMENT TO A PROSPECTIVE BIDDER OR EVEN A CURRENT CONTRACTOR IS NOT SUFFICIENT BASIS FOR QUESTIONING AN OTHERWISE VALID AWARD IF THERE IS NO EVIDENCE OF AN INTENT TO EXCLUDE THE BIDDER. SEE B-174230, NOVEMBER 17, 1971; 34 COMP. GEN. 684 (1955). FURTHERMORE, QUESTIONS CONCERNING WHETHER SUFFICIENT COMPETITION WAS SOUGHT MUST BE DETERMINED FROM THE GOVERNMENT'S VIEW ON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED AND NOT ON THE BASIS OF WHETHER EVERY POTENTIAL BIDDER WAS GIVEN AN OPPORTUNITY TO BID. SEE 50 COMP. GEN. 565, 571 (1971).

IN REGARD TO THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENTS, OUR 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. IF ACKNOWLEDGMENT IS NOT MADE BEFORE BID OPENING, THE BIDDER'S OFFER WOULD BE FOR SOME PERFORMANCE OTHER THAN THAT SOLICITED BY THE TERMS OF THE IFB AND AMENDMENTS. THE GOVERNMENT COULD NOT THEN REQUIRE FULL PERFORMANCE AND OTHER BIDDERS WOULD BE PREJUDICED BY UNEQUAL REQUIREMENTS. SEE B-172794, JULY 19, 1971; AND 40 COMP. GEN. 126 (1960).

ACCORDINGLY, THE PROTEST IS DENIED.