B-181801, DEC 12, 1974

B-181801, DEC 12, 1974

LOW BIDDER WHO FAILED TO ACKNOWLEDGE RECEIPT OF $16,300 AMENDMENT TO NAVY CONSTRUCTION CONTRACT, BUT AFTER BID OPENING NOTIFIED AGENCY THAT AMENDMENT WOULD NOT AFFECT ITS PRICE, IS NOT ENTITLED TO AWARD, NOTWITHSTANDING ALLEGATION THAT DUE TO AGENCY NEGLIGENCE IT DID NOT RECEIVE COPY OF AMENDMENT, SINCE FAILURE TO RECEIVE AMENDMENT DOES NOT JUSTIFY RESOLICITATION OR POST BID OPENING MODIFICATION. MOREOVER, UNDER ASPR 2-405(IV)(B), WAIVER OF FAILURE TO ACKNOWLEDGE AMENDMENT WOULD NOT BE JUSTIFIED BECAUSE AMENDMENT HAD MORE THAN A "TRIVIAL" OR "NEGLIGIBLE" EFFECT ON PRICE, CONSIDERING THE OVERALL SCOPE OF WORK ($1,864,989) AND DIFFERENCE BETWEEN LOW BIDS ($110,000).

AFB CONTRACTORS, INC.:

AFB CONTRACTORS, INCORPORATED (AFB), THE LOW BIDDER UNDER INVITATION FOR BIDS (IFB) NO. N62474-73-C-5218 ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, PROTESTED AGAINST THE AWARD OF THE CONTRACT TO ANY OTHER BIDDER.

THE IFB FOR THE CONSTRUCTION OF PIER UTILITIES AT THE NAVAL AIR STATION, ALAMEDA, CALIFORNIA, WAS REVISED BY TWO AMENDMENTS, EACH OF WHICH CONTAINED A NOTATION THAT "FAILURE TO ACKNOWLEDGE THE AMENDMENT MAY CONSTITUTE GROUNDS FOR REJECTION OF THE BID." FOUR BIDS WERE RECEIVED AND OPENED ON JUNE 25, 1974. AFB'S BID WAS $1,864,989 WHILE THE SECOND LOW BID, SUBMITTED BY E.C. BRAUN COMPANY, WAS $1,974,737. AFB PROTESTS AGAINST THE REJECTION OF ITS BID AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 2.

AMENDMENT NO. 2 CLARIFIED THE SPECIFICATIONS AND ADDED A REQUIREMENT FOR FENDER PILES TO PROTECT THE FIRE PROTECTION PLATFORM. AT THE TIME OF ISSUANCE, THE GOVERNMENT ESTIMATED THE INCREASED COST OF PERFORMANCE TO BE $16,300. AFB CONTENDS THAT THIS ESTIMATE WAS UNREASONABLY HIGH AND THAT THE INCREASED COST WOULD NOT EXCEED $4,500. WE HAVE NO BASIS FOR CONCLUDING THAT THE AGENCY'S ESTIMATE WAS UNREASONABLY HIGH. MOREOVER, IT WOULD BE IMPROPER TO ALLOW A BIDDER WHO IS SEEKING A WAIVER OF HIS FAILURE TO ACKNOWLEDGE AN AMENDMENT, TO DETERMINE THE VALUE OF THE AMENDMENT, SINCE IT WOULD PERMIT THE BIDDER, AFTER BID OPENING, TO HAVE THE OPTION TO DECIDE WHETHER OR NOT TO BECOME ELIGIBLE FOR THE AWARD. 53 COMP. GEN. 64, 66 (1973).

THE PROTESTER TAKES THE POSITION THAT ITS FAILURE TO ACKNOWLEDGE AMENDMENT NO. 2 RESULTED FROM NEVER HAVING RECEIVED THE AMENDMENT. THE ADMINISTRATIVE REPORT INDICATES THAT ALL BIDDERS, INCLUDING AFB, WERE SENT THE AMENDMENT ON JUNE 6, 1974 AND THAT ALL BUT AFB ACKNOWLEDGED RECEIPT. RECENTLY, WE STATED IN B-176628(1), JANUARY 24, 1973, THAT:

"*** THIS OFFICE HAS CONSISTENTLY HELD THAT THE FAILURE OF A BIDDER TO RECEIVE AN INVITATION FOR BIDS OR A COPY OF AN AMENDMENT TO THE INVITATION DOES NOT ORDINARILY REQUIRE EITHER A RESOLICITATION OF BIDS OR CONSIDERATION OF A BID OR MODIFICATION RECEIVED AFTER THE TIME FIXED FOR OPENING OF BIDS. B-161896, SEPTEMBER 1, 1967; B-154580, JULY 8, 1964; 40 COMP. GEN. 126, 128 (1960)."

SEE ALSO B-174259, JANUARY 5, 1972. MOREOVER, ON THE RECORD BEFORE US, WE FIND NO EVIDENCE OF ANY CONSCIOUS OR DELIBERATE INTENTION ON THE PART OF THE CONTRACTING OFFICE TO EXCLUDE AFB, OR ANY OTHER BIDDER, FROM PARTICIPATION IN THE PROCUREMENT.

AFB FURTHER ASSERTS THAT AMENDMENT NO. 2 HAD NO EFFECT ON ITS QUOTED PRICE BECAUSE UPON LEARNING OF THE AMENDMENT FOR THE FIRST TIME AT BID OPENING, IT CHECKED WITH ITS AFFECTED SUBCONTRACTOR WHO ALLEGEDLY HAD BEEN AWARE OF THE REQUIRED CHANGES AND HAD INCORPORATED THE ADDITIONAL WORK IN ITS QUOTATION TO AFB. SINCE THE SECOND LOW BID EXCEEDED THAT OF AFB BY NEARLY $110,000, AFB CONTENDS THAT AMENDMENT NO. 2 WOULD HAVE NO EFFECT ON THE RELATIVE STANDING OF THE BIDDERS, AND THAT ITS FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD BE WAIVED AS A MINOR INFORMALITY. ALTHOUGH AFB, SUBSEQUENT TO BID OPENING, ATTEMPTED TO ACKNOWLEDGE AMENDMENT NO. 2 AT NO CHANGE IN ITS BID PRICE, WE BELIEVE THE CONTRACTING OFFICER PROPERLY REJECTED AFB'S BID AS NONRESPONSIVE.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), SEC. 2-405(IV)(B) (1974 ED.) PROVIDES FOR WAIVER OF THE FAILURE TO ACKNOWLEDGE AN AMENDMENT IF "THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS ***." IN DISCUSSING THE STANDARD FOR DETERMINING "TRIVIAL OR NEGLIGIBLE EFFECT OR PRICE" UNDER ASPR 2 405(IV)(B), WE HAVE STATED THAT:

"*** INDEED, WE DO NOT BELIEVE THAT ANY SPECIFIC FIGURE MAY BE DETERMINATIVE WITHOUT REFERENCE TO THE PARTICULAR FACTS. IN THAT CONNECTION, IT IS OUR VIEW THAT WHETHER THE CHANGE EFFECTED BY THE AMENDMENT IS TRIVIAL OR NEGLIGIBLE IN TERMS OF PRICE MUST BE DETERMINED IN RELATION TO THE OVERALL SCOPE OF THE WORK AND THE DIFFERENCE BETWEEN THE LOW BIDS." 52 COMP. GEN. 544, 545 (1973).

WE THERE HELD THAT FAILURE TO ACKNOWLEDGE A $916 AMENDMENT COULD BE WAIVED, THE AMOUNT INVOLVED IN THE AMENDMENT BEING TRIVIAL, SINCE IT REPRESENTED ONLY .1376 PERCENT OF THE OVERALL $702,000 COST OF THE JOB AND ONLY 5.68 PERCENT OF THE $17,000 DIFFERENCE BETWEEN THE LOW BID AND NEXT LOW BID. SIMILARLY, IN B-178666, AUGUST 8, 1973, WAIVER OF THE FAILURE TO ACKNOWLEDGE A $20 AMENDMENT WAS PERMITTED WHERE THE OVERALL COST OF THE JOB WAS $423,966 AND THE DIFFERENCE BETWEEN THE LOW AND NEXT LOW BID WAS $36,084. HOWEVER, IN 53 COMP. GEN. 64, SUPRA, WHERE A $5,500 AMENDMENT CONSTITUTED 20.9 PERCENT OF THE DIFFERENCE BETWEEN THE LOW BID AND NEXT LOW BID, WE HELD THAT A FAILURE TO ACKNOWLEDGE AN AMENDMENT PROPERLY RESULTED IN REJECTION OF THE LOW BID AS NONRESPONSIVE. THIS CONCLUSION WAS REACHED NOTWITHSTANDING THE FACT THAT THE AMENDMENT ONLY REPRESENTED .434 PERCENT OF THE LOW BID OR OVERALL CONTRACT COST OF $1,242,828.

IN THE INSTANT CASE THE AMENDMENT REPRESENTS ONLY .874 PERCENT OF THE OVERALL CONTRACT PRICE OFFERED BY AFB. NEVERTHELESS, SINCE AMENDMENT NO. 2 CONSTITUTES APPROXIMATELY 14.8 PERCENT OF THE $110,000 DIFFERENCE BETWEEN THE LOW BID OF AFB AND THE NEXT LOW BID OF BRAUN, WE BELIEVE AFB'S FAILURE TO ACKNOWLEDGE THE AMENDMENT HAS MORE THAN A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE AND THEREFORE CANNOT BE WAIVED AS A MINOR INFORMALITY UNDER ASPR SEC. 2-405(IV)(B).

AFB ALSO ALLEGES THAT AWARD OF THE SUBJECT CONTRACT WAS MADE IN CONTRAVENTION OF 4 C.F.R. SEC. 20.4 (1974) WHICH PROVIDES THAT WHEN A PROTEST IS FILED WITH OUR OFFICE, AWARD SHOULD NOT BE MADE PRIOR TO OUR RULING ON THE CASE, UNLESS WE HAVE BEEN FURNISHED WITH A WRITTEN FINDING BY THE AGENCY HEAD SPECIFYING THE FACTORS WHICH WILL NOT PERMIT A DELAY IN THE AWARD. WE FIND NO MERIT IN THIS ARGUMENT. BY LETTER OF JUNE 29, 1974, THE NAVAL FACILITIES ENGINEERING COMMAND NOTIFIED AFB OF THE REJECTION OF ITS BID AS NONRESPONSIVE AND ALSO STATED THAT "FOR YOUR INFORMATION, A CONTRACT HAS BEEN AWARDED (ALSO ON JUNE 29, 1974) FOR THE SUBJECT PROJECT TO E.C. BRAUN COMPANY AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER." SINCE AFB'S JULY 5, 1974 PROTEST WAS FILED SUBSEQUENT TO THE DATE OF AWARD, THE CONTRACT WAS NOT AWARDED IN VIOLATION OF SECTION 20.4 OF OUR BID PROTEST PROCEDURES.

ACCORDINGLY, THE PROTEST ID DENIED.