B-198210, JUL 18, 1980

B-198210: Jul 18, 1980

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BIDDER BECOMES INELIGIBLE FOR AWARD AND THEREFORE DOES NOT HAVE DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO AWARD UNDER SOLICITATION TO BE REGARDED AS "INTERESTED" PARTY UNDER BID PROTEST PROCEDURES WHERE OTHER APPARENTLY RESPONSIVE. RESPONSIBLE BIDDERS EXIST AND NO APPARENT NEED WILL ARISE TO RESOLICIT PROCUREMENT. THE IFB WAS A TOTAL SMALL BUSINESS SET-ASIDE FOR THE CONSTRUCTION OF AN ENGINEER TACTICAL VEHICLE SHOP AT FORT BENNING. IS NONRESPONSIVE. ML'S PROTEST IS BASED ON THE FOLLOWING CONTENTIONS: (1) ACS FAILED TO ACKNOWLEDGE THE RECEIPT OF AN AMENDMENT. (4) ACS' TELEGRAPHIC MODIFICATION TO ITS BID WAS NOT PUBLICLY READ AT BID OPENING. BID OPENING WAS HELD ON MARCH 20. FIVE BIDS WERE RECEIVED.

B-198210, JUL 18, 1980

DIGEST: WHERE SECOND LOW BIDDER PROTESTING RESPONSIVENESS OF LOW BID REVISES ITS PRICE WHEN GRANTING EXTENSION OF BID ACCEPTANCE PERIOD, BIDDER BECOMES INELIGIBLE FOR AWARD AND THEREFORE DOES NOT HAVE DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO AWARD UNDER SOLICITATION TO BE REGARDED AS "INTERESTED" PARTY UNDER BID PROTEST PROCEDURES WHERE OTHER APPARENTLY RESPONSIVE, RESPONSIBLE BIDDERS EXIST AND NO APPARENT NEED WILL ARISE TO RESOLICIT PROCUREMENT.

MURPHREE & LISLE, INC.:

MURPHREE & LISLE, INC. (ML) PROTESTS THE PROPOSED AWARD OF A CONTRACT TO ACS CONSTRUCTION COMPANY, INC. (ACS) UNDER INVITATION FOR BIDS (IFB) NO. DACA21-80-B-0039 ISSUED BY CORPS OF ENGINEERS. THE IFB WAS A TOTAL SMALL BUSINESS SET-ASIDE FOR THE CONSTRUCTION OF AN ENGINEER TACTICAL VEHICLE SHOP AT FORT BENNING, GEORGIA.

ML, THE SECOND LOW BIDDER, CONTENDS THAT THE BID OF ACS, THE LOW BIDDER, IS NONRESPONSIVE. ML'S PROTEST IS BASED ON THE FOLLOWING CONTENTIONS: (1) ACS FAILED TO ACKNOWLEDGE THE RECEIPT OF AN AMENDMENT; (2) ACS DID NOT SUBMIT ITS BID ON THE PROPER FORM; (3) ACS FAILED TO CHANGE ITS BID ACCEPTANCE PERIOD AS REQUIRED BY AN AMENDMENT TO THE IFB; (4) ACS' TELEGRAPHIC MODIFICATION TO ITS BID WAS NOT PUBLICLY READ AT BID OPENING; AND (5) ACS' BID DID NOT PROPERLY REFLECT THE CORRECT DATE AND TIME OF BID OPENING. FOR THE REASONS THAT FOLLOW, WE DISMISS ML'S PROTEST.

BID OPENING WAS HELD ON MARCH 20, 1980, AND FIVE BIDS WERE RECEIVED. ML'S PROTEST WAS SUBSEQUENTLY FILED WITH OUR OFFICE ON MARCH 24, 1980. WHILE THE PROTEST WAS PENDING THE CONTRACTING OFFICER REQUESTED ML TO EXTEND ITS BID ACCEPTANCE PERIOD (VARIOUS EXTENSIONS FOR A TOTAL OF 120 DAYS WERE REQUESTED). ON JUNE 16, ML WROTE A LETTER TO THE CONTRACTING OFFICER WHICH STATES IN PART:

"*** WE WILL BE HAPPY TO EXECUTE A CONTRACT AT THAT TIME (EXPIRATION OF THE 30 DAY PERIOD REQUESTED BY THE CONTRACTING OFFICER) BUT ONLY AFTER OUR TOTAL CONTRACT AMOUNT HAS BEEN CHANGED TO COMPENSATE FOR MATERIAL AND SUBCONTRACT ESCALATIONS DURING THIS PERIOD."

IN A TELEPHONE CONVERSATION WITH A MEMBER OF OUR STAFF ON JULY 2, A REPRESENTATIVE OF ML CONFIRMED ITS REFUSAL TO ACCEPT AWARD OF THE CONTRACT AT ITS ORIGINAL BID PRICE.

WE HAVE CONSISTENTLY HELD THAT BIDDERS MAY NOT BE PERMITTED TO REVISE THEIR BID PRICES WHEN GRANTING AN EXTENSION, AS THIS WOULD BE TANTAMOUNT TO PERMITTING THEM TO SUBMIT A SECOND BID AFTER BID OPENING CONTRARY TO COMPETITIVE BIDDING PRINCIPLES. 50 COMP.GEN. 383 (1970). CONSEQUENTLY, SINCE ML CONDITIONED ITS EXTENSION UPON AN INCREASE IN PRICE, IT IS NOT ELIGIBLE TO RECEIVE AWARD OF THE CONTRACT, AND, UNDER THESE CIRCUMSTANCES, IS NOT ELIGIBLE TO MAINTAIN A PROTEST UNDER THE INSTANT INVITATION.

A PARTY MUST BE "INTERESTED" UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), IN ORDER TO HAVE ITS PROTEST CONSIDERED BY OUR OFFICE. DETERMINING WHETHER A PARTY IS SUFFICIENTLY INTERESTED INVOLVES CONSIDERATION OF THE PARTY'S STATUS IN RELATION TO THE PROCUREMENT AND THE NATURE OF THE ISSUES INVOLVED. SEE, GENERALLY, AMERICAN SATELLITE CORPORATION (RECONSIDERATION), B-189551, APRIL 17, 1978, 78-1 CPD 289.

THE RECORD INDICATES THAT THERE ARE THREE OTHER BIDDERS IN LINE FOR AWARD, SO THAT EVEN IF THE LOW BID IS NONRESPONSIVE, THERE IS NO APPARENT NEED TO CANCEL THE INVITATION AND RESOLICIT THE PROCUREMENT (THEREBY PERMITTING ML TO REBID). THEREFORE, WE FIND ML DOES NOT HAVE THE NECESSARY DIRECT AND SUBSTANTIAL INTEREST WITH RESPECT TO AWARD UNDER THIS SOLICITATION TO BE REGARDED AS AN INTERESTED PARTY UNDER OUR BID PROTEST PROCEDURES. THERM-AIR MFG. CO., INC., B-195401.2, FEBRUARY 11, 1980, 80-1 CPD 119; 4 C.F.R. SEC. 20.1(A) (1980).

THE PROTEST IS DISMISSED.