B-175409, APR 14, 1972

B-175409, APR 14, 1972

BID PROTEST - AMENDMENT - FAILURE TO ACKNOWLEDGE - ALLEGED NONRECEIPT DECISION DENYING THE PROTEST OF E. E. COUSINS, INC., AGAINST REJECTION OF ITS BID AS NONRESPONSIVE FOR FAILING TO ACKNOWLEDGE AN AMENDMENT TO AN IFB ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND FOR MODIFICATIONS TO WATER AND HVAC SYSTEMS AT THE NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MD. AS A GENERAL RULE, AN OFFEROR'S FAILURE TO ACKNOWLEDGE AN AMENDMENT WHICH AFFECTS PRICE, QUANTITY, OR QUALITY WILL RENDER ITS BID NONRESPONSIVE AND THE COMP. GEN. HAS NEVER PERMITTED WAIVER OF THIS RULE WHERE, AS HERE, THE DEVIATION IS SIGNIFICANT AND MAY RESULT IN A $200 ALTERATION OF THE CONTRACT PRICE. 44 COMP. GEN. 753 (1965). IT MUST BE RECOGNIZED THAT SINCE THE PROPOSAL DID NOT BIND COUSINS TO THE PROVISIONS OF AMENDMENT NO. 2, IT WOULD HAVE BEEN GRANTED THE OPTION OF ACCEPTING OR REJECTING THE GOVERNMENT'S OFFER AFTER OPENING AND, THEREFORE, WOULD NOT HAVE BEEN BIDDING IN THE SAME STATUS AS OTHER BIDDERS. WITH RESPECT TO PROTESTANT'S ALLEGED NONRECEIPT OF THE AMENDMENT, GAO HAS CONSISTENTLY HELD THAT THE FACT THAT A PARTICULAR BIDDER DID NOT RECEIVE A COPY DOES NOT WARRANT ACCEPTANCE OR MODIFICATION OF HIS BID AFTER OPENING. 40 COMP. GEN. 126 (1960). IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.

TO E. E. COUSINS, INC.

WE REFER TO YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. N62477-70-B-0945, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, WHICH WAS FORWARDED TO OUR OFFICE BY LETTER OF MARCH 8, 1972, FROM CONGRESSMAN JOEL T. BROYHILL.

THE INVITATION WAS ISSUED ON DECEMBER 28, 1971, CALLING FOR MODIFICATIONS TO WATER AND HVAC SYSTEMS AT THE NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MARYLAND. AMENDMENT NO. 1 WAS ISSUED ON JANUARY 12, 1972. AMENDMENT NO. 2 WAS ISSUED ON JANUARY 18, 1972, AND WAS MAILED TO ALL PROSPECTIVE BIDDERS ON JANUARY 20, 1972, ACCORDING TO THE REPORT FROM THE OFFICE OF THE GENERAL COUNSEL, DEPARTMENT OF THE NAVY. THE REPORT FURTHER STATES THAT SIX BIDS WERE RECEIVED AND OPENED ON JANUARY 26, 1972. ALL BIDDERS ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 1, AND ALL BIDDERS, WITH THE EXCEPTION OF YOUR FIRM, ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 2.

YOUR BID IN THE AMOUNT OF $95,466 WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 2. AWARD WAS MADE TO THE NEXT LOW BIDDER IN THE AMOUNT OF $97,400.

YOU ALLEGE THAT THE REASON YOU DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 2 WAS THAT YOU HAD NOT RECEIVED IT AT THE TIME OF BID OPENING, SO THAT IT WAS IMPOSSIBLE FOR YOU TO ACKNOWLEDGE ITS RECEIPT. YOU FURTHER STATE THAT AFTER ALL BIDS WERE OPENED, YOU ASKED TO SEE AMENDMENT NO. 2, AND AFTER READING IT YOU TOLD THE CONTRACTING OFFICER THAT IT DID NOT AFFECT YOUR BID PRICE. ADDITIONALLY, IT IS STATED IN YOUR BEHALF THAT THE AMENDMENT MADE TWO CHANGES, THE FIRST OF WHICH, TO SECTION 1A.9, DOES NOT INVOLVE THE PLUMBING CONTRACT ON WHICH YOU BID, AND THAT THE SECOND CHANGE TO SECTION 4A.3 MERELY ADDS TO THE SPECIFICATIONS A WRITTEN DESCRIPTION OF AN ITEM ALREADY SHOWN IN THE DRAWINGS AND INCLUDED IN YOUR BID.

SECTION 12 OF AMENDMENT NO. 2 CONTAINS THE FOLLOWING DESCRIPTION OF AMENDMENT:

DRAWINGS

NAVFAC DRAWING NO'S

1359348 LOWER RIGHT PORTION OF SHEET, CHANGE DETAIL TITLE "AT RISER W-2, 1ST. FL." TO READ "CHASE-FURRING WHEN NOT AT CORNER-TYPICAL"

1359351 TOP OF SHEET, UNDER RISERS W-1 AND W-2 DELETE ALL NOTES "EXPOSED". LOWER LEFT CORNER CHANGE RISER "P OVER 4A" TO READ "W OVER 4A"

SPECIFICATION

DIVISION 1. GENERAL REQUIREMENTS

SECTION 1A. GENERAL PARAGRAPHS.

1A.9 MINIMUM WAGE RATES AND OTHER LABOR STANDARDS. - LINE 5, CHANGE "FICATIONS 1, 2, AND 3" TO READ "FICATIONS 1, 2, 3, 4 AND 5.".

DIVISION 4. MASONRY

SECTION 4A. FURRING.

4A.3 GENERAL. AT THE END OF THIS PARAGRAPH, INSERT THE FOLLOWING NEW SENTENCE, "ALL RISERS SHALL BE CONCEALED BY PIPE CHASES OF MASONRY FURRING EXCEPT THOSE INDICATED AS EXPOSED.".

OUR EXAMINATION OF DRAWING NOS. 1359348 AND 1359351 DISCLOSES THAT THE DRAWINGS OF THE MASONRY CHASE-FURRING, PRIOR TO THE AMENDMENT, DO NOT CLEARLY SET FORTH THE REQUIREMENT FOR ENCLOSURE OF THE PIPE RISERS, SINCE SOME RISERS ARE DESIGNATED AS EXPOSED AND THERE IS NO INDICATION WHETHER THE REMAINING RISERS ARE EXPOSED OR ENCLOSED. THIS DEFECT IN THE DRAWINGS IS REMOVED BY THE CHANGE TO THE DETAIL TITLE, WHICH INDICATES THE CHASE- FURRING IS TYPICAL, AND BY THE ADDITION OF THE SENTENCE TO SECTION 4A.3 THAT ALL RISERS SHALL BE CONCEALED EXCEPT THOSE INDICATED AS EXPOSED.

WE DO NOT AGREE, THEREFORE, THAT AMENDMENT NO. 2 MERELY ADDS A WRITTEN DESCRIPTION OF AN ITEM ALREADY SHOWN IN THE DRAWINGS AND INCLUDED IN YOUR BID. IT IS OUR VIEW THAT A SIGNIFICANT CHANGE WAS MADE IN BOTH THE DRAWINGS AND THE SPECIFICATION BY THE TERMS OF THE AMENDMENT, WHICH REQUIRES THAT ALL RISERS BE ENCLOSED EXCEPT THOSE SPECIFICALLY DESIGNATED AS EXPOSED, AND BY ELIMINATION OF THE DESIGNATION "EXPOSED" FOR RISERS W-1 AND W-2.

WITH REGARD TO THE EFFECT OF YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT, THE GENERAL RULE IS THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE FAILURE OF A BIDDER TO ACKNOWLEDGE ITS RECEIPT RENDERS HIS BID NONRESPONSIVE, AND SUCH FAILURE CANNOT BE WAIVED. 44 COMP. GEN. 753 (1965) AND CASES CITED THEREIN. THIS GENERAL RULE IS NOT APPLIED INDISCRIMINATELY AND IS MODIFIED TO SOME EXTENT BY ARMED SERVICES PROCUREMENT REGULATION 2 405 WHICH PROVIDES, IN THE CASE OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS, THAT FAILURE TO ACKNOWLEDGE AN AMENDMENT MAY BE CORRECTED OR WAIVED, BUT ONLY IF THE BID CLEARLY SHOWS THAT THE BIDDER RECEIVED THE AMENDMENT OR WHERE THE AMENDMENT WOULD HAVE NO EFFECT, OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT, ON THE PRICE, QUALITY, QUANTITY OR DELIVERY.

NEITHER THE REGULATION NOR DECISIONS OF OUR OFFICE DEFINE WHAT WILL BE CONSIDERED "TRIVIAL" OR "NEGLIGIBLE", BUT WE STATED IN 44 COMP. GEN. 753, CITED ABOVE, THAT WE HAD NEVER APPROVED WAIVER OF A FAILURE TO ACKNOWLEDGE AN AMENDMENT WHERE THE MAXIMUM POSSIBLE AMOUNT OF DEVIATION WAS AS MUCH AS $200. IN THE PRESENT CASE, THE NAVY ESTIMATES THAT THE COST OF THE MASONRY CHASE-FURRING ADDED BY THE AMENDMENT WOULD AMOUNT TO MORE THAN $200. IT IS OUR OPINION, THEREFORE, THAT THE GENERAL RULE IS FOR APPLICATION IN THIS INSTANCE.

SINCE YOUR BID WAS RESPONSIVE ONLY TO THE ORIGINAL INVITATION AND AMENDMENT NO. 1, AND DID NOT BIND YOU TO PERFORM THE ADDITIONAL WORK SPECIFIED IN AMENDMENT NO. 2, YOUR BID WAS CLEARLY NOT ON THE SAME BASIS AS THE BIDS OF THE FIVE OTHER BIDDERS WHO ACKNOWLEDGED BOTH AMENDMENTS AND WHO WERE FULLY RESPONSIVE TO ALL THE TERMS OF THEREIN. UNDER SUCH CIRCUMSTANCES, THE CONTRACTING OFFICER WAS WITHOUT LEGAL AUTHORITY TO ACCEPT YOUR BID, AND IT WAS PROPERLY REJECTED AS NONRESPONSIVE.

OUR CONCLUSION IN THIS REGARD IS NOT AFFECTED BY YOUR STATEMENT, AFTER BID OPENING, THAT AMENDMENT NO. 2 DID NOT ALTER YOUR BID PRICE. THE BASIS FOR THE RULE APPLIED ABOVE IS THAT A BIDDER WHO FAILS TO ACKNOWLEDGE AN AMENDMENT MAY NOT BE ALLOWED AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY FURNISHING EVIDENCE OUTSIDE THE BID THAT THE ADDENDUM HAD BEEN CONSIDERED, OR TO AVOID AN AWARD BY REMAINING SILENT. -171062, DECEMBER 17, 1970.

WITH RESPECT TO YOUR CONTENTION THAT YOU COULD NOT ACKNOWLEDGE AMENDMENT NO. 2 BECAUSE YOU DID NOT RECEIVE IT PRIOR TO BID OPENING, THE RECORD SHOWS THAT THE AMENDMENT WAS MAILED TO ALL PROSPECTIVE BIDDERS ON JANUARY 20, 1972, AND THAT FIVE OF THE SIX BIDDERS WHO RESPONDED ACKNOWLEDGED ITS RECEIPT. WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF INVITATIONS AND AMENDMENTS THERETO, WE HAVE CONSISTENTLY HELD THAT THE FACT THAT A PARTICULAR BIDDER DID NOT RECEIVE A COPY DOES NOT WARRANT ACCEPTANCE OF HIS BID, OR A MODIFICATION THEREOF, AFTER THE TIME FIXED FOR BID OPENING. 40 COMP. GEN. 126 (1960); 37 ID. 785 (1958). IN THE PRESENT CASE, WE FIND NO REASON FOR DEVIATING FROM THIS RULE IN ORDER TO ALLOW YOU TO MODIFY YOUR BID TO BIND YOURSELF TO THE TERMS OF AN AMENDMENT TO WHICH YOU WERE NOT BOUND AT THE TIME OF BID OPENING.

YOUR REMAINING CONTENTION IS THAT THE CHANGE TO SECTION 1A.9 DOES NOT APPLY TO THE PLUMBING CONTRACT ON WHICH YOU BID. HOWEVER, RESOLUTION OF THIS QUESTION IS UNNECESSARY IN VIEW OF OUR ABOVE STATED CONCLUSION THAT YOUR BID WAS PROPERLY REJECTED ON OTHER GROUNDS.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.