B-181588, JAN 16, 1975

B-181588: Jan 16, 1975

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LOW BID ON CONSTRUCTION PROJECT WAS PROPERLY REJECTED AS NONRESPONSIVE. 2. AFTER BID OPENING A BIDDER MAY NOT DELETE A CONDITION IN ITS ORIGINAL BID REGARDING TIME FOR STARTING WORK ON A GOVERNMENT CONSTRUCTION CONTRACT SINCE GOVERNMENT REQUIREMENT REGARDING TIME FOR STARTING WORK IS MATERIAL AND A BID MAY NOT BE MADE RESPONSIVE BY CHANGING A MATERIAL PART THEREOF AFTER OPENING. KIPP'S BID WAS REJECTED AS NONRESPONSIVE ON ACCOUNT OF THE FOLLOWING LEGEND INCLUDED AT THE END OF ITS BID SCHEDULE: "STARTING TIME TO COINCIDE WITH DELIVERY OF MATERIAL "DELIVERY OF V.C.P. & DUCTIL PIPE TWO WEEKS "DELIVERY OF ALTERNATE P.V.C. COUNSEL ARGUES THAT THE STATEMENT WAS INTENDED MERELY TO INFORM THE CONTRACTING AGENCY THAT THE STARTING TIME FOR THE PROJECT MIGHT BE LATE DEPENDING ON THE TIME OF DELIVERY OF CERTAIN MATERIALS AND THAT THE LEGEND NEITHER QUALIFIES THE PROJECT PRICE NOR INDICATES THAT DELIVERY OF MATERIALS WOULD NOT BE MADE.

B-181588, JAN 16, 1975

1. WHERE LOW BIDDER QUALIFIED BID BY NOTING THEREON THAT WORK WOULD START UPON RECEIPT OF MATERIALS AND GOVERNMENT ADVERTISED FOR BIDS ON BASIS OF OBTAINING THE RIGHT TO TERMINATE THE CONTRACTOR'S RIGHT TO PROCEED WITH WORK AND TO TAKE OVER AND PROSECUTE WORK TO COMPLETION IF CONTRACTOR DOES NOT COMMENCE WORK WITHIN 15 DAYS AFTER NOTICE TO PROCEED, LOW BID ON CONSTRUCTION PROJECT WAS PROPERLY REJECTED AS NONRESPONSIVE. 2. AFTER BID OPENING A BIDDER MAY NOT DELETE A CONDITION IN ITS ORIGINAL BID REGARDING TIME FOR STARTING WORK ON A GOVERNMENT CONSTRUCTION CONTRACT SINCE GOVERNMENT REQUIREMENT REGARDING TIME FOR STARTING WORK IS MATERIAL AND A BID MAY NOT BE MADE RESPONSIVE BY CHANGING A MATERIAL PART THEREOF AFTER OPENING.

KIPP CONSTRUCTION CO.:

RICHARD KIPP CONSTRUCTION COMPANY (KIPP) PROTESTS THE REJECTION OF ITS LOW BID UNDER IFB NO. 6230-0359 ISSUED BY THE NATIONAL PARK SERVICE ON MAY 14, 1974, FOR THE CONSTRUCTION OF A SEWER SYSTEM TO SERVE THE CAMP GROUNDS, VISITOR CENTER AND LIVING QUARTERS AT COLORADO NATIONAL MONUMENT, COLORADO.

KIPP'S BID WAS REJECTED AS NONRESPONSIVE ON ACCOUNT OF THE FOLLOWING LEGEND INCLUDED AT THE END OF ITS BID SCHEDULE:

"STARTING TIME TO COINCIDE WITH DELIVERY OF MATERIAL

"DELIVERY OF V.C.P. & DUCTIL PIPE TWO WEEKS

"DELIVERY OF ALTERNATE P.V.C. PIPE SIXTEEN TO EIGHTEEN WEEKS"

COUNSEL FOR KIPP CONTENDS THAT THE ABOVE LEGEND DOES NOT RENDER ITS BID NONRESPONSIVE. COUNSEL ARGUES THAT THE STATEMENT WAS INTENDED MERELY TO INFORM THE CONTRACTING AGENCY THAT THE STARTING TIME FOR THE PROJECT MIGHT BE LATE DEPENDING ON THE TIME OF DELIVERY OF CERTAIN MATERIALS AND THAT THE LEGEND NEITHER QUALIFIES THE PROJECT PRICE NOR INDICATES THAT DELIVERY OF MATERIALS WOULD NOT BE MADE. THUS COUNSEL CONTENDS THAT THE LEGEND ON KIPP'S BID IS A MINOR INFORMALITY AND THAT THE BID SHOULD BE CONSIDERED RESPONSIVE.

FOR THE FOLLOWING REASONS WE HAVE CONCLUDED THAT KIPP'S BID MUST BE REJECTED. THE INSTANT INVITATION INCLUDED STANDARD FORM (SF) 21 WHICH PROVIDES THAT IF THE BIDDER IS AWARDED THE CONTRACT, WORK WOULD HAVE TO COMMENCE WITHIN 15 CALENDAR DAYS AFTER THE DATE OF RECEIPT BY THE CONTRACTOR OF NOTICE TO PROCEED. SUPPLEMENTAL PROVISION SP-03, TIME FOR COMPLETION, AS AMENDED BY ADDENDUM NO. 2, JUNE 3, 1974, REQUIRED THAT ALL WORK BE COMPLETED WITHIN 320 CALENDAR DAYS FROM THE DATE OF THE RECEIPT OF THE NOTICE TO PROCEED. ALSO, SF 23A, SECTION 5, IN PERTINENT PART, PROVIDES:

"(A) IF THE CONTRACTOR REFUSES OR FAILS TO PROSECUTE THE WORK, OR ANY SEPARABLE PART THEREOF, WITH SUCH DILIGENCE AS WILL INSURE ITS COMPLETION WITHIN THE TIME SPECIFIED IN THIS CONTRACT, OR ANY EXTENSION THEREOF, *** THE GOVERNMENT MAY, BY WRITTEN NOTICE TO THE CONTRACTOR, TERMINATE HIS RIGHT TO PROCEED WITH THE WORK OR SUCH PART OF THE WORK AS TO WHICH THERE HAS BEEN DELAY. IN SUCH EVENT THE GOVERNMENT MAY TAKE OVER THE WORK AND PROSECUTE THE SAME TO COMPLETION, BY CONTRACT OR OTHERWISE, AND MAY TAKE POSSESSION OF AND UTILIZE IN COMPLETING THE WORK SUCH MATERIALS, APPLIANCES, AND PLANT AS MAY BE ON THE SITE OF THE WORK AND NECESSARY THEREFOR."

FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.404-2(A) (1964 ED.) PROVIDES THAT ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS MUST BE REJECTED AS NONRESPONSIVE. ORDINARILY, A BID MUST BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT RIGHTS OF THE GOVERNMENT UNDER ANY CONTRACT CLAUSE OR LIMIT ITS LIABILITY TO THE GOVERNMENT SO AS TO GIVE SUCH BIDDER AN ADVANTAGE OVER OTHER BIDDERS. FPR 1-2.404-2(B)(5) (1964 ED.).

IN THIS CASE THE GOVERNMENT ADVERTISED FOR BIDS ON THE BASIS THAT IT WOULD OBTAIN THE RIGHT TO TERMINATE THE CONTRACTOR'S RIGHT TO PROCEED WITH THE WORK AND TO TAKE OVER AND PROSECUTE THE WORK TO COMPLETION IN THE EVENT THE CONTRACTOR DOES NOT COMMENCE WORK WITHIN 15 DAYS AFTER RECEIPT OF THE GOVERNMENT'S NOTICE TO PROCEED. WE BELIEVE SUCH A RIGHT IS ESSENTIAL TO THE ADMINISTRATION OF GOVERNMENT CONTRACTS AS IS THE STIPULATED TIME FOR DELIVERY OF CONTRACT ITEMS, WHICH HAS LONG BEEN RECOGNIZED TO BE AN ESSENTIAL REQUIREMENT. 36 COMP. GEN. 181, 182 (1956) AND 30 COMP. GEN. 179, 181 (1950). SINCE THE ABOVE-QUOTED STATEMENT IN KIPP'S BID PROPOSES THAT THE STARTING TIME COINCIDE WITH THE DELIVERY OF MATERIAL RATHER THAN WITH THE GOVERNMENT'S NOTICE TO PROCEED, THE BIDDER HAS ATTEMPTED TO LIMIT ITS LIABILITY TO THE GOVERNMENT IN THIS REGARD. ACCORDINGLY, WE FIND THAT KIPP'S BID IS NOT RESPONSIVE TO A MATERIAL INVITATION REQUIREMENT AND THAT THE BID MUST BE REJECTED.

WITH REGARD TO KIPP'S ATTEMPT AFTER BID OPENING TO MODIFY ITS BID BY DELETING THE CONDITION IN ITS ORIGINAL BID, IT IS WELL SETTLED THAT A BIDDER MAY NOT MAKE ITS BID RESPONSIVE BY CHANGING A MATERIAL PART THEREOF AFTER BID OPENING. TO PERMIT SUCH ACTION WOULD BE TANTAMOUNT TO ALLOWING KIPP TO SUBMIT A NEW BID CONTRARY TO THE ESTABLISHED RULES OF COMPETITIVE BIDDING. 40 COMP. GEN. 432 (1961).

ACCORDINGLY, THE PROTEST IS DENIED.