B-211846, JUN 21, 1983

B-211846: Jun 21, 1983

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TWELVE BIDS WERE RECEIVED AT THE FEBRUARY 17. HEMPEL'S LOW BID FOR CERTAIN ITEMS WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF THE ABOVE-DISCUSSED AMENDMENT. IF A BIDDER DOES NOT RECEIVE AND ACKNOWLEDGE A MATERIAL AMENDMENT TO AN IFB AND THIS FAILURE IS NOT THE RESULT OF A CONSCIOUS AND DELIBERATE EFFORT TO EXCLUDE THE BIDDER FROM PARTICIPATING IN THE COMPETITION. GSA ADVISES THAT THE AMENDMENT WAS MAILED TO HEMPEL'S AND ALL OTHER FIRMS TO WHICH INVITATIONS HAD BEEN FURNISHED. HEMPEL'S HAS PRESENTED NO EVIDENCE THAT ITS FAILURE TO RECEIVE THE AMENDMENT WAS THE RESULT OF A DELIBERATE ATTEMPT ON THE PART OF THE CONTRACTING ACTIVITY TO EXCLUDE HEMPEL'S FROM COMPETITION.

B-211846, JUN 21, 1983

DIGEST: 1. BIDDER'S FAILURE TO ACKNOWLEDGE IFB AMENDMENT MAY NOT BE WAIVED ON BASIS THAT BIDDER DID NOT RECEIVE AMENDMENT FROM AGENCY PRIOR TO BID OPENING WHERE NO EVIDENCE INDICATES DELIBERATE ATTEMPT BY AGENCY TO EXCLUDE BIDDER FROM COMPETITION. 2. FAILURE TO ACKNOWLEDGE AMENDMENT WHICH MATERIALLY MODIFIES DELIVERY REQUIREMENTS RENDERS BID NONRESPONSIVE.

HEMPEL'S MARINE PAINTS, INCORPORATED:

HEMPEL'S MARINE PAINTS, INCORPORATED (HEMPEL'S), PROTESTS THE REJECTION OF ITS LOW BID FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT AS REQUIRED BY INVITATION FOR BIDS (IFB) NO. 10PR-XBS-5393, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA). THE IFB SOLICITED PAINT. SUMMARILY DENY THE PROTEST.

THE AMENDMENT ISSUED JANUARY 31, 1983, PROVIDED FOR CHANGES IN INSPECTION, TESTING, AND SHIPMENT REQUIREMENTS. GSA INFORMALLY ADVISED US THAT THE SOLICITATION AS ORIGINALLY DRAFTED REQUIRED THAT: (1) THE RAW INGREDIENTS FOR THE PAINT BE MADE AVAILABLE FOR TESTING AND INSPECTION WITHIN 60 CALENDAR DAYS AFTER RECEIPT OF ORDER; (2) THE FINISHED PAINT BE AVAILABLE FOR INSPECTION WITHIN 14 CALENDAR DAYS AFTER NOTICE OF APPROVED RAW INGREDIENTS; AND (3) SHIPMENT TO DESTINATION BE MADE WITHIN 60 CALENDAR DAYS AFTER NOTICE OF APPROVED MANUFACTURED SUPPLIES.

THE AMENDMENT TO THE SOLICITATION PROVIDES THAT THE REQUIRED SUPPLIES BE MADE AVAILABLE FOR INSPECTION AND TESTING WITHIN 60 CALENDAR DAYS AFTER RECEIPT OF THE ORDER AND THAT SHIPMENT BE MADE WITHIN 14 DAYS AFTER NOTICE OF APPROVAL.

TWELVE BIDS WERE RECEIVED AT THE FEBRUARY 17, 1983, BID OPENING. HEMPEL'S LOW BID FOR CERTAIN ITEMS WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF THE ABOVE-DISCUSSED AMENDMENT.

HEMPEL'S CONTENDS THAT ITS FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD NOT RENDER ITS BID NONRESPONSIVE SINCE IT NEVER RECEIVED THE AMENDMENT. ADDITIONALLY, HEMPEL'S BELIEVES THAT THE AMENDMENT DID NOT PLACE MORE STRINGENT REQUIREMENTS ON BIDDERS AND STATES THAT IT COULD MEET THE TERMS OF EITHER THE SOLICITATION AS ORIGINALLY DRAFTED OR THE AMENDMENT.

FOR THE REASONS SET OUT BELOW, WE DISAGREE WITH THE PROTESTER'S CONTENTIONS.

IF A BIDDER DOES NOT RECEIVE AND ACKNOWLEDGE A MATERIAL AMENDMENT TO AN IFB AND THIS FAILURE IS NOT THE RESULT OF A CONSCIOUS AND DELIBERATE EFFORT TO EXCLUDE THE BIDDER FROM PARTICIPATING IN THE COMPETITION, NORMALLY, THE BID MUST BE REJECTED AS NONRESPONSIVE. PORTER CONTRACTING COMPANY, 55 COMP.GEN. 615 (1976), 76-1 CPD 2. GSA ADVISES THAT THE AMENDMENT WAS MAILED TO HEMPEL'S AND ALL OTHER FIRMS TO WHICH INVITATIONS HAD BEEN FURNISHED. HEMPEL'S HAS PRESENTED NO EVIDENCE THAT ITS FAILURE TO RECEIVE THE AMENDMENT WAS THE RESULT OF A DELIBERATE ATTEMPT ON THE PART OF THE CONTRACTING ACTIVITY TO EXCLUDE HEMPEL'S FROM COMPETITION.

OUR OFFICE HAS HELD THAT FAILURE TO ACKNOWLEDGE AN AMENDMENT TO A SOLICITATION WHICH MATERIALLY AFFECTS THE IFB REQUIRES REJECTION OF THE BID AS NONRESPONSIVE AND MAY NOT BE WAIVED AS A MINOR INFORMALITY. SEE WESTERN MICROFILM SYSTEMS/LITHOGRAPHICS, B-196649, JANUARY 9, 1980, 80-1 CPD 27. HERE, CONTRARY TO THE PROTESTER'S CONTENTION, DISCUSSED ABOVE, WE BELIEVE THE AMENDMENT MATERIALLY MODIFIED DELIVERY AND INSPECTION REQUIREMENTS SINCE IT SHORTENED THE DELIVERY PERIOD FROM 60 TO 14 DAYS AFTER APPROVAL AND REVISED INSPECTION PROCEDURES.

ACCORDINGLY, THE PROTEST IS SUMMARILY DENIED.