B-181794, AUG 29, 1974

B-181794, AUG 29, 1974

1. CONTRACTING AGENCY DETERMINATION THAT TELEGRAM ACKNOWLEDGING ADDENDUM INCORPORATING DAVIS-BACON WAGE RATES IN IFB WAS RECEIVED LATE BASED UPON AGENCY TIME STAMP WAS PROPER, NOTWITHSTANDING INFORMATION FROM WESTERN UNION THAT IT WAS DELIVERED EARLY, SINCE INSTRUCTIONS TO BIDDERS PROVIDED THAT AGENCY TIME STAMP WAS EVIDENCE REQUIRED TO BE USED TO ESTABLISH TIME OF RECEIPT. 2. FAILURE TO TIMELY ACKNOWLEDGE ADDENDUM INCORPORATING DAVIS-BACON WAGE DETERMINATION IN IFB RENDERED BID NONRESPONSIVE, NOTWITHSTANDING CONTRACT LABOR STANDARDS PROVIDED CONTRACTOR SHALL PAY WAGE RATES "CONTAINED IN WAGE DETERMINATION DECISION THAT IS ATTACHED TO THIS SPECIFICATION OR ADDENDUM THERETO," SINCE ACCEPTANCE OF BID IN FORM IT EXISTS AT TIME OF OPENING WOULD NOT RESULT IN CONTRACT CONTAINING STATEMENT OF MINIMUM WAGE RATES AS REQUIRED BY DAVID-BACON ACT.

LAMBERT CONSTRUCTION COMPANY:

INVITATION FOR BIDS (IFB) NO. N62467-74-B-0289 WAS ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC), CHARLESTON, SOUTH CAROLINA, ON MAY 1, 1974, FOR REPAIRS TO BUILDING NUMBER 1 OF THE NAVAL RESERVE CENTER, STILLWATER, OKLAHOMA.

ON MAY 23, 1974, NAVFAC ISSUED IFB ADDENDUM NO. 1, WHICH MADE DEPARTMENT OF LABOR WAGE DECISION 74-0K-284, THE APPLICABLE DAVIS-BACON ACT WAGE RATES, PART OF THE IFB SPECIFICATION. THE ADDENDUM STATED, "EACH BIDDER SHALL REFER IN HIS BID TO ALL ADDENDA; FAILURE TO DO SO MAY CONSTITUTE AN INFORMALITY IN THE BID."

THE LAMBERT CONSTRUCTION COMPANY (LAMBERT) BID OF $39,848 WAS THE LOWEST BID RECEIVED AT THE 2:30 P.M. OPENING ON JUNE 6, 1974. LAMBERT TRANSMITTED ITS ACKNOWLEDGMENT OF THE ADDENDUM VIA WESTERN UNION TELEGRAM WHICH WAS TIME STAMPED AT THE CHARLESTON NAVAL SHIPYARD COMMUNICATION CENTER (CENTER) AT 2:38 P.M. AND SUBSEQUENTLY DELIVERED TO NAVFAC, SOME SEVERAL MILES FROM THE CENTER, AT 4:06 P.M., ON JUNE 6, 1974. SINCE THE TELEGRAM ACKNOWLEDGING RECEIPT OF THE ADDENDUM WAS RECEIVED AFTER BID OPENING AT 2:30 P.M., LAMBERT'S BID WAS REJECTED AS NONRESPONSIVE. AWARD WAS MADE TO B. D. CLICK COMPANY IN THE AMOUNT OF $40,888.

LAMBERT PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE ON TWO GROUNDS. FIRST, IT OBJECTS TO NAVFAC'S DETERMINATION THAT THE TELEGRAM ACKNOWLEDGING ITS RECEIPT OF THE ADDENDUM WAS LATE, BECAUSE THERE IS A DISCREPANCY BETWEEN WESTERN UNION AND NAVFAC AS TO THE ACTUAL TIME OF RECEIPT. NAVFAC MAINTAINS THAT THE TELEGRAM WAS RECEIVED AT 2:38 P.M., WHEREAS WESTERN UNION SUBMITS THAT THE TELEGRAM WAS DELIVERED BY TIELINE AT 2:16 P.M., JUNE 16, 1974.

SECONDLY, LAMBERT ASSERTS THAT THE ADDENDUM WAS SUPERFLUOUS INASMUCH AS PARAGRAPH 13 OF THE LABOR STANDARDS PROVISIONS OF THE CONTRACT STATED:

"THE CONTRACTOR SHALL PAY MECHANICS AND LABORERS EMPLOYED OR WORKING DIRECTLY UPON THE SITE OF THE WORK WAGE RATES NOT LESS THAN THOSE DETERMINED AS PREVAILING BY THE SECRETARY OF LABOR AND CONTAINED IN THE WAGE DETERMINATION DECISION THAT IS ATTACHED TO THIS SPECIFICATION OR ADDENDUM THERETO. ***"

THE IFB STATES IN THE INSTRUCTIONS TO BIDDERS:

"LATE BIDS, MODIFICATIONS OF BIDS OR WITHDRAWAL OF BIDS (1973 SEP)

"(C) THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH:

"(II) THE TIME OF RECEIPT AT THE GOVERNMENT INSTALLATION IS THE TIME/DATE STAMP OF SUCH INSTALLATION ON THE BID WRAPPER OR OTHER DOCUMENTARY EVIDENCE OF RECEIPT MAINTAINED BY THE INSTALLATION."

UNDER THE FOREGOING INSTRUCTIONS TO BIDDERS, THE AGENCY TIME STAMP, NOT THE WESTERN UNION INFORMATION, WAS THE EVIDENCE REQUIRED TO BE USED TO ESTABLISH THE TIME OF RECEIPT. THEREFORE, THE DETERMINATION OF NAVFAC THAT THE TELEGRAM WAS RECEIVED LATE BASED UPON THE TIME STAMP ON THE TELEGRAM WAS PROPER.

NOTWITHSTANDING THE LANGUAGE QUOTED ABOVE FROM THE CONTRACT LABOR STANDARDS PROVISIONS,

"*** THE CONTROLLING CONSIDERATION IN THIS AND SIMILAR CASES IS THAT WHERE A BIDDER FAILS TO ACKNOWLEDGE AN AMENDMENT OF SUBSTANCE, THE BID IS NONRESPONSIVE BECAUSE ACCEPTANCE OF THE BID IN THE FORM IT EXISTS AT THE TIME OF OPENING WOULD NOT RESULT IN A CONTRACT CONTAINING A STATEMENT OF THE MINIMUM WAGE RATES TO BE PAID AS REQUIRED BY THE DAVIS BACON ACT, 40 U.S.C. 276A." 51 COMP. GEN. 500, 503 (1972), AND DECISIONS CITED THEREIN.

ON THE BASIS OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE REJECTION OF LAMBERT'S BID AS NONRESPONSIVE.

ACCORDINGLY, THE PROTEST IS DENIED.