B-175559, MAY 30, 1972

B-175559: May 30, 1972

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BIDDER RESPONSIVENESS IS A MATTER TO BE DETERMINED SOLELY ON THE BASIS OF THE BID AS SUBMITTED. 45 COMP. PROTESTANT'S ACKNOWLEDGEMENT OF THE SECOND AMENDMENT TO THE IFB IS NOT SUFFICIENT TO BIND IT TO THE PROVISIONS OF THE UNACKNOWLEDGED FIRST AMENDMENT. ITS BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND ITS PROTEST MUST BE DENIED. V. KEITH YOUNG: REFERENCE IS MADE TO YOUR LETTER OF MARCH 29. TWO ADDENDA WERE ISSUED MAKING ADDITIONS TO THE SPECIFICATIONS. ADDENDUM NO. 1 WAS NOT SO ACKNOWLEDGED BY ABA. YOU CONTEND THAT ABA WAS LEGALLY REQUIRED TO KNOW THAT THERE WAS AN ADDENDUM NO. 1 (PRESUMABLY BECAUSE IT PROPERLY ACKNOWLEDGED THE SEQUENTIALLY NUMBERED ADDENDUM NO. 2 WHICH REFERRED TO THE SAME SPECIFICATION PAGE AND ADDENDUM NO. 1) AND THAT BY ACKNOWLEDGING ADDENDUM NO. 2 IT EFFECTIVELY BOUND ITSELF TO COMPLY WITH THE IFB AS AMENDED.

B-175559, MAY 30, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO ACKNOWLEDGE AMENDMENT DECISION DENYING THE PROTEST OF ABA INDUSTRIES, INC., AGAINST REJECTION OF ITS BID AS NONRESPONSIVE UNDER AN IFB ISSUED BY THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION. BIDDER RESPONSIVENESS IS A MATTER TO BE DETERMINED SOLELY ON THE BASIS OF THE BID AS SUBMITTED. 45 COMP. GEN. 221 (1965). IN THE INSTANT CASE, PROTESTANT'S ACKNOWLEDGEMENT OF THE SECOND AMENDMENT TO THE IFB IS NOT SUFFICIENT TO BIND IT TO THE PROVISIONS OF THE UNACKNOWLEDGED FIRST AMENDMENT. ACCORDINGLY, ITS BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND ITS PROTEST MUST BE DENIED.

TO MR. V. KEITH YOUNG:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1972, CONCERNING THE PROTEST OF ABA INDUSTRIES, INC., AGAINST THE REJECTION OF ITS BID AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE AN AMENDMENT TO INVITATION FOR BIDS (IFB) NOAA 18-72, ISSUED BY THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA).

THE IFB INVOLVED THE PROCUREMENT OF A DOPPLER RADAR PEDESTAL AND INTERFACE. TWO ADDENDA WERE ISSUED MAKING ADDITIONS TO THE SPECIFICATIONS. BOTH ADDENDA ADVISED BIDDERS THAT RECEIPT THEREOF HAD TO BE ACKNOWLEDGED IN THE SPACE PROVIDED ON PAGE 2 OF THE SOLICITATION OR BY SIGNING AND RETURNING THE ORIGINALS OF THE ADDENDA PRIOR TO BID OPENING. ADDENDUM NO. 1 WAS NOT SO ACKNOWLEDGED BY ABA; HOWEVER, THAT BIDDER PROPERLY ACKNOWLEDGED RECEIPT OF ADDENDUM NO. 2.

YOU CONTEND THAT ABA WAS LEGALLY REQUIRED TO KNOW THAT THERE WAS AN ADDENDUM NO. 1 (PRESUMABLY BECAUSE IT PROPERLY ACKNOWLEDGED THE SEQUENTIALLY NUMBERED ADDENDUM NO. 2 WHICH REFERRED TO THE SAME SPECIFICATION PAGE AND ADDENDUM NO. 1) AND THAT BY ACKNOWLEDGING ADDENDUM NO. 2 IT EFFECTIVELY BOUND ITSELF TO COMPLY WITH THE IFB AS AMENDED. DO NOT AGREE.

WHILE THESE PIECES OF INFORMATION IN ADDENDUM NO. 2 MAY HAVE PUT ABA ON NOTICE THAT THERE WAS A PREEXISTING ADDENDUM, WE CANNOT HOLD, AS A MATTER OF LAW, THAT ABA IS CONSTRUCTIVELY BOUND TO COMPLY WITH THE CONTENTS OF ADDENDUM NO. 1. NEITHER DO WE BELIEVE THAT ADDENDUM NO. 2 INCORPORATED BY REFERENCE THE NEW OBLIGATIONS ARISING BY VIRTUE OF ADDENDUM NO. 1. BELIEVE, THEREFORE, THAT THE FAILURE OF ABA TO ACKNOWLEDGE ADDENDUM NO. 1 RENDERED ITS BID NONRESPONSIVE TO THE SOLICITATION REQUIREMENTS AS AMENDED. IN THIS CONNECTION, THE RESPONSIVENESS OF A BID IS TO BE DETERMINED FROM THE BID ITSELF WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATIONS REGARDING THE BIDDER'S INTENTIONS. SEE 45 COMP. GEN. 221 (1965); ID. 357 (1965). THEREFORE, ABA'S WORKSHEETS ARE IRRELEVANT TO THE PRESENT MATTER AND ARE NOT FOR CONSIDERATION. THE PROTEST OF ABA INDUSTRIES, INC., IS DENIED.