B-176174, OCT 17, 1972

B-176174, OCT 17, 1972

BID PROTEST - NONRESPONSIVENESS - NON-MATERIAL REQUIREMENT DECISION ALLOWING THE PROTEST OF LEO JOURNAGAN CONSTRUCTION COMPANY, INC., AGAINST THE PROPOSED REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE U. S. ARMY, OFFICE OF THE CHIEF OF ENGINEERS, FOR CLEARING THE CARTERS RESERVOIR AREA AND DISPOSING OF THE CLEARED MATERIAL. THE REQUIREMENT THAT A BIDDER IS TO SUBMIT SEPARATE BIDS SO AS TO FACILITATE ADMINISTRATION OF A CONTRACT, WHEN IN FACT ONLY THE TOTAL OF THE BIDS IS TO BE CONSIDERED IN AWARDING THE CONTRACT, IS NOT OF SUFFICIENT MATERIALITY TO VIEW A DEVIATION THEREFROM AS MORE THAN A MINOR INFORMALITY OR IRREGULARITY. THEREFORE, UNDER THESE CIRCUMSTANCES, SUCH A BID CANNOT BE REJECTED AS NON-RESPONSIVE, EVEN IF THE IFB SPECIFICALLY PROVIDES THAT FAILURE TO COMPLY WITH THE REQUIREMENT JUSTIFIES AUTOMATIC REJECTION.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 20, 1972, FROM THE DEPUTY GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, DAEN-GCC, AND PRIOR CORRESPONDENCE, CONCERNING THE PROTEST BY THE LEO JOURNAGAN CONSTRUCTION COMPANY, INCORPORATED, AGAINST THE PROPOSED REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. DACW01-72-B-0085, ISSUED ON MARCH 17, 1972, FOR CLEARING THE CARTERS RESERVOIR AREA AND DISPOSING OF THE CLEARED MATERIAL.

PAGE BS-1 OF THE INVITATION AS INITIALLY ISSUED SET FORTH THE BIDDING SCHEDULE IN THE FOLLOWING MANNER:

"ITEM ESTIMATED UNIT ESTIMATED

NO. DESCRIPTION QUANTITY UNIT PRICE AMOUNT

1. CLEARING, COMPLETE 1 JOB XXX

"NOTE: PAYMENT UNDER ITEM NO. 1 WILL CONSTITUTE FULL COMPENSATION FOR ALL WORK PERFORMED UNDER THIS CONTRACT."

THE BID OPENING DATE IN THE INVITATION WAS SCHEDULED FOR APRIL 20, 1972. ON APRIL 12, 1972, AMENDMENT NO. 1 WAS ISSUED AND THE BID OPENING DATE WAS EXTENDED TO MAY 3, 1972, WITH NO OTHER CHANGES. AMENDMENT NO. 2, ISSUED ON APRIL 26, 1972, EXTENDED THE BID OPENING TO MAY 10, 1972, AND ALSO REPLACED AND REVISED CERTAIN PAGES IN THE ORIGINAL BID SET. ONE OF THE REVISED PAGES WAS BS-1, WHICH SET FORTH THE BIDDING SCHEDULE AS FOLLOWS:

"ITEM ESTIMATED UNIT ESTIMATED

NO. DESCRIPTION QUANTITY UNIT PRICE AMOUNT

1. CLEARING, COMPLETE, 1 JOB XXX

PARCEL NO. 1

2. CLEARING, COMPLETE

PARCEL NO. 2 1 JOB XXX

TOTAL

"NOTE NO. 1. BIDDERS MUST INSERT A PRICE ON ALL NUMBERED ITEMS OF THE BIDDING SCHEDULE. FAILURE TO DO SO WILL DISQUALIFY THE BID. (SEE PARAGRAPH 5(B) OF STANDARD FORM 22, INSTRUCTIONS TO BIDDERS.)"

AMENDMENT NO. 3 WAS ISSUED ON MAY 1, 1972, CLARIFYING ONE LINE IN THE TECHNICAL PROVISION; AMENDMENT NO. 4 CONFIRMED BY TELEGRAM ISSUED MAY 8, 1972, EXTENDED THE BID OPENING TO MAY 26, 1972; AMENDMENT NO. 5 DELETED AND SUBSTITUTED CERTAIN PAGES; AND AMENDMENT NO. 6 ISSUED ON MAY 17, 1972, CLARIFIED TWO LINES IN THE TECHNICAL PROVISION.

LEO JOURNAGAN SUBMITTED A BID PRIOR TO MAY 10, 1972, THE EXTENDED BID OPENING DATE IN AMENDMENT NO. 2, WHICH ALSO REVISED THE BIDDING SCHEDULE. THE CONTRACTING OFFICER'S REPORT STATES THAT WHEN AMENDMENTS ARE ISSUED AND TIME BETWEEN THE ISSUANCE OF THE AMENDMENT AND THE BID OPENING IS SUFFICIENT TO ALLOW THE RETURN AND RESUBMISSION OF THE BID, THE BIDDERS ARE CONTACTED BY TELEPHONE AND ASKED IF THEY WISH TO HAVE THE BID RETURNED OR HELD BY THE PROCURING ACTIVITY. ON MAY 8, 1972, JOURNAGAN WAS CONTACTED BY THE PROCURING ACTIVITY FOR THIS PURPOSE AND THE BIDDER REQUESTED RETURN OF ITS BID WITH "NEW" FORMS IN ORDER TO RESUBMIT THE BID. A LETTER DATED MAY 8, 1972, RETURNED JOURNAGAN'S BID AND ALSO INCLUDED A SET OF BID FORMS FOR RESUBMISSION OF JOURNAGAN'S BID. PAGE BS- 1 OF THE BID SET INCLUDED WITH THE MAY 8 LETTER WAS THE SAME AS IN THE ORIGINAL BID PACKAGE, ALTHOUGH IT ALSO APPEARS THAT JOURNAGAN HAD RECEIVED THE REVISED BID SCHEDULE PAGE WHEN IT INITIALLY RECEIVED AMENDMENT NO. 2. JOURNAGAN RESUBMITTED ITS BID PRIOR TO MAY 26.

BIDS WERE OPENED ON MAY 26 AND SEVEN BIDS WERE RECEIVED. THE LOW BIDDER WAS PERMITTED TO WITHDRAW ITS BID BECAUSE OF MISTAKE AND THIS MATTER IS NOT AN ISSUE IN THIS CASE. JOURNAGAN'S BID INCLUDED PAGE BS 1 OF THE BIDDING SCHEDULE WHICH WAS PART OF THE ORIGINAL BID SET AND HAD BEEN FORWARDED TO JOURNAGAN WITH THE MAY 8 LETTER. JOURNAGAN'S TOTAL PRICE FOR THE JOB OF $1,768,200, IS THE APPARENT LOW BID. JOURNAGAN'S BID ACKNOWLEDGES RECEIPT OF AMENDMENTS 0001 THROUGH 0006. THE NEXT LOW BID IS THAT OF TAYLOR CONTRACTING COMPANY, INCORPORATED, WHICH USED THE REVISED PAGE BS-1, INCLUDED IN AMENDMENT NO. 0002, AND ITS PRICES ARE $1,516,000 FOR PARCEL NO. 1 AND $278,000 FOR PARCEL NO. 2, FOR A TOTAL BID OF $1,794,000.

THE CONTRACTING OFFICER PROPOSES TO REJECT JOURNAGAN'S BID AS NONRESPONSIVE FOR FAILURE TO INCLUDE THE REVISED PAGE BS-1 FURNISHED WITH AMENDMENT NO. 0002. THE CONTRACTING OFFICER POINTS TO PAGE 2, PART I OF AMENDMENT NO. 0002 WHICH STATES:

"*** THE PAGES LISTED BELOW ARE TO BE REPLACED BY THE CORRESPONDENCE ADDED AND/OR REVISED PAGES ***."

THE CONTRACTING OFFICER'S REASONING IS THAT JOURNAGAN AND THE OTHER BIDDERS HAD THE RESPONSIBILITY OF ACKNOWLEDGING THE AMENDMENT AND ALSO OF FOLLOWING THE INSTRUCTIONS OF THE AMENDMENT WHICH, IN THIS CASE WAS TO SUBSTITUTE PAGE BS-1 INCLUDED WITH THE AMENDMENT. SINCE IT APPEARS THAT JOURNAGAN HAD RECEIVED THE REVISED BID SCHEDULE PAGE WHEN IT INITIALLY RECEIVED AMENDMENT NO. 0002, THE CONTRACTING OFFICER URGES THAT HIS DETERMINATION OF NONRESPONSIVENESS BE AFFIRMED.

IN DECIDING THE RESPONSIVENESS OF JOURNAGAN'S BID, THERE IS A THRESHOLD QUESTION CONCERNING THE MATERIALITY OF THE CHANGE IN THE BIDDING FORMAT RESULTING FROM THE SUBSTITUTION OF PAGE BS-1 OF THE BIDDING SCHEDULE. THIS CONNECTION, THE SPECIFICATIONS PROVIDE THAT THE AREAS TO BE CLEARED UNDER THE CONTRACT HAVE BEEN DIVIDED INTO TWO PARCELS, WHICH ARE THEREAFTER DELINEATED, FOR "IDENTIFICATION AND REFERENCE PURPOSES." THE REVISED BIDDING SCHEDULE RESULTED FROM THE RECOMMENDATION OF THE CHIEF, ENGINEERING DIVISION, THAT IT WOULD BE "HIGHLY ADVANTAGEOUS TO SUBDIVIDE THE TOTAL CLEARING TO BE DONE INTO SMALLER INCREMENTS TO FACILITATE THE BIDDING PROCESS AS WELL AS TO AID IN ADMINISTRATION OF THE CONTRACT." THE SPECIFICATIONS AS ORIGINALLY DRAFTED CLEARLY DELINEATED THE TWO PARCELS AS TO THEIR LOCATION AND DEFINED THE WORK CALLED FOR IN EACH AREA. AMENDMENT NO. 0002 CHANGED NEITHER THE AREAS DESIGNATED NOR THE WORK REQUIRED, BUT WAS LIMITED TO A CHANGE IN THE BIDDING SCHEDULE PRESUMABLY TO AID IN CONTRACT ADMINISTRATION. IN THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE REQUIREMENT FOR SEPARATE BIDDING ON THE TWO PARCELS IS NOT OF SUFFICIENT MATERIALITY TO VIEW A DEVIATION THEREFROM AS MORE THAN A MINOR INFORMALITY OR IRREGULARITY. IN THIS CONNECTION, ARMED SERVICES PROCUREMENT REGULATION 2-405 PROVIDES AS FOLLOWS:

"2-405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT ***."

FURTHERMORE, WE DO NOT BELIEVE THAT THE ADMONITION IN THE REVISED BIDDING SCHEDULE THAT FAILURE TO COMPLY THEREWITH WILL DISQUALIFY THE BID JUSTIFIES AUTOMATIC REJECTION WITHOUT REGARD TO THE MATERIALITY OF THE REQUIREMENT. B-175243, JUNE 16, 1972.

ACCORDINGLY, WE BELIEVE JOURNAGAN'S BID IS PROPERLY FOR ACCEPTANCE AS THE LOW RESPONSIVE BID.