B-158766, JUN. 3, 1966

B-158766: Jun 3, 1966

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INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 29. WHICH HELD THAT NO AWARD SHOULD BE MADE UNDER COAST GUARD INVITATION FOR BIDS IFB 08-56-66 BECAUSE SUFFICIENT TIME WAS NOT PROVIDED FOR THE CONSIDERATION OF AMENDMENTS TO THE INVITATION. YOU CONTEND THAT THE DECISION IS ERRONEOUS BECAUSE YOUR COMPANY IS AS FAR AWAY FROM THE BID OPENING SITE AS IS DINGER CONTRACTING CO. YOU SAY THAT EMPLOYING REASONABLE DILIGENCE YOUR COMPANY WAS ABLE TO GET ITS BID IN BEFORE THE BID OPENING DEADLINE. UPON WHICH THE APRIL 26 DECISION WAS BASED. DOES NOT ASSIGN 2 DAYS OR EVEN 2 HOURS AS BEING INSUFFICIENT TIME TO PERMIT BIDDERS TO CONSIDER INVITATION AMENDMENTS AND YOU THEREFORE SUGGEST THAT SINCE OTHER BIDDERS WERE ABLE TO SUBMIT TIMELY BIDS.

B-158766, JUN. 3, 1966

TO MIKE BRADFORD AND CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1966, AND TO LETTER OF MAY 3, 1966, FROM YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF DECISION B- 158766 OF APRIL 26, 1966, WHICH HELD THAT NO AWARD SHOULD BE MADE UNDER COAST GUARD INVITATION FOR BIDS IFB 08-56-66 BECAUSE SUFFICIENT TIME WAS NOT PROVIDED FOR THE CONSIDERATION OF AMENDMENTS TO THE INVITATION.

YOU CONTEND THAT THE DECISION IS ERRONEOUS BECAUSE YOUR COMPANY IS AS FAR AWAY FROM THE BID OPENING SITE AS IS DINGER CONTRACTING CO. AND YOU SAY THAT EMPLOYING REASONABLE DILIGENCE YOUR COMPANY WAS ABLE TO GET ITS BID IN BEFORE THE BID OPENING DEADLINE. YOU STATE FURTHER THAT DINGER HAD WITHDRAWN ITS BID AND DID NOT REINSTATE IT AND THEREFORE SUGGEST THAT IT SHOULD NOT BE CONSIDERED A PROSPECTIVE BIDDER. YOU STATE ALSO THAT FEDERAL PROCUREMENT REGULATIONS (FPR) 1 2.207 (D), UPON WHICH THE APRIL 26 DECISION WAS BASED, DOES NOT ASSIGN 2 DAYS OR EVEN 2 HOURS AS BEING INSUFFICIENT TIME TO PERMIT BIDDERS TO CONSIDER INVITATION AMENDMENTS AND YOU THEREFORE SUGGEST THAT SINCE OTHER BIDDERS WERE ABLE TO SUBMIT TIMELY BIDS, THE AMENDMENTS SHOULD BE CONSIDERED TO HAVE BEEN ISSUED IN SUFFICIENT TIME.

YOUR STATEMENT THAT YOUR COMPANY IS AS FAR AWAY AS DINGER IS FROM THE BID OPENING SITE IN NEW ORLEANS IS INCORRECT. THE AIR MILES FROM NEW ORLEANS TO NEW YORK, WHERE DINGER IS LOCATED IN STATEN ISLAND, ARE ALMOST TWICE THE NUMBER FROM NEW ORLEANS TO MIAMI, FLORIDA, WHERE YOUR COMPANY IS BASED.

ALSO, ALTHOUGH IT IS TRUE THAT DINGER ORIGINALLY HAD WITHDRAWN ITS BID BEFORE THE LAST AMENDMENTS WERE ISSUED, PROCUREMENT PERSONNEL WERE THEREAFTER IN TOUCH WITH THE COMPANY AND AFTER DISCUSSIONS WITH ITS REPRESENTATIVES WERE LEFT WITH THE UNDERSTANDING THAT THE COMPANY WOULD BID IF THERE WAS ADEQUATE TIME TO SUBMIT A BID ON THE AMENDMENTS. THEREFORE, TO ALL INTENT AND PURPOSES, DINGER WAS A PROSPECTIVE BIDDER DESPITE THE ABSENCE OF A FORMAL RETRACTION OF THE WITHDRAWAL.

MOREOVER, ALTHOUGH YOUR COMPANY AND BIDDERS FROM THE NEW ORLEANS AREA WERE ABLE TO SUBMIT BIDS ON THE AMENDMENTS WITHIN THE TIME REMAINING BEFORE BID OPENING, IT IS TO BE NOTED THAT AS OF THE MORNING OF THE BID OPENING DAY DINGER HAD NOT RECEIVED THE LAST AMENDMENT AND WE DO NOT KNOW THAT IT RECEIVED THE AMENDMENT BEFORE THE BID OPENING TIME. THEREFORE, WHILE YOU SUGGEST THAT WITH REASONABLE DILIGENCE A BID COULD HAVE BEEN SUBMITTED ON TIME, AS YOUR COMPANY AND THE OTHER BIDDERS DID, IT DOES NOT APPEAR THAT DINGER WAS PROVIDED AN EQUAL OPPORTUNITY TO DO SO. EVEN IF THE AMENDMENT WAS RECEIVED SHORTLY BEFORE BID OPENING TIME, IT SHOULD NOT BE OVERLOOKED THAT IN THE TIME REMAINING BEFORE BID OPENING IT WAS NECESSARY THAT A 25-PAGE AMENDMENT BE COMPLETELY ANALYZED, THE EXTENT OF CHANGES BROUGHT ABOUT THEREBY BE APPRAISED, THE QUANTITY OF MATERIAL AND SERVICES REQUIRED THEREBY BE ESTIMATED, AND POSSIBLY QUOTATIONS BE OBTAINED FROM OTHER SOURCES BEFORE TELEGRAPHING AN ACKNOWLEDGMENT OF THE AMENDMENT AND ANY RESULTING CHANGES IN THE BID. IT IS UNREASONABLE TO EXPECT ALL OF THIS TO BE ACCOMPLISHED IN THE BRIEF TIME THAT MAY HAVE REMAINED FOR DINGER BEFORE THE BID OPENING. IN THAT RESPECT, THE REPORT TO OUR OFFICE FROM COAST GUARD HEADQUARTERS, WHILE SUGGESTING THAT THERE WERE EXTENUATING CIRCUMSTANCES WHICH WERE CONSIDERED AND DISPOSED OF IN THE APRIL 26 DECISION, RECOGNIZED THE VALIDITY OF DINGER'S PROTEST THAT THE AMENDMENTS WERE NOT ISSUED IN SUFFICIENT TIME.

YOUR ATTORNEYS CONTEND THAT OUR DECISION B-157982 OF MARCH 23, 1966, AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 REQUIRE A DIFFERENT RESULT THAN THE ONE WHICH WAS REACHED IN THE APRIL 26 DECISION. HOWEVER, THE CITED CASE CAN BE DISTINGUISHED. WHILE IT WAS RECOGNIZED IN THAT CASE THAT THE REGULATIONS REQUIRE THAT THERE BE SUFFICIENT TIME FOR THE CONSIDERATION OF AMENDMENTS AND THAT SUFFICIENT TIME APPARENTLY WAS NOT PROVIDED, CANCELLATION OF THE AWARD WAS NOT REQUIRED FOR A VARIETY OF REASONS AMONG WHICH WAS THE FACT THAT THE AMENDMENT WOULD HAVE ONLY A NEGLIGIBLE OR TRIVIAL EFFECT ON PRICE ($20.70), IN WHICH EVENT THE REGULATIONS PERMIT THE FAILURE TO ACKNOWLEDGE AN AMENDMENT TO BE CORRECTED OR WAIVED AFTER BID OPENING. IN THE IMMEDIATE CASE, HOWEVER, AMENDMENT 4 COULD APPARENTLY HAVE A SUBSTANTIAL EFFECT UPON THE BID PRICES AS EVIDENCED BY THE TELEGRAPHIC MODIFICATION YOUR COMPANY SUBMITTED ACKNOWLEDGING AMENDMENTS 3 AND 4. AMENDMENT 3 PROVIDED MODIFICATIONS TO PAGES X-2 AND X-3 OF PART X OF THE SPECIFICATIONS. HOWEVER, AMENDMENT 4 DELETED IN THEIR ENTIRETY PAGES X-1 THROUGH X-6 OF PART X OF THE SPECIFICATIONS AND IN LIEU THEREOF ADDED PAGES 10-1 THROUGH 10-12 AND 10A- 1 THROUGH 10A-13. YOUR TELEGRAPHIC MODIFICATION INCLUDED DEDUCTIONS IN AMOUNTS OF $112,770, $35,000, $30,000 AND $15,000 AS WELL AS AN ADDITION IN THE AMOUNT OF $20,000.

FPR SEC. 1-2.404-1 IS THE PROVISION COMPARABLE TO ASPR 2-404.1 AND IS THE REGULATION WHICH APPLIES TO THE COAST GUARD. THAT PROVISION STATES THAT "PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT, AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION.' YOUR ATTORNEYS RELY UPON THE GENERAL REQUIREMENT OF THE REGULATION; HOWEVER, IN OUR OPINION THIS CASE COMES WITHIN THE EXCEPTION AT THE END OF THE REGULATION PROVIDING FOR CANCELLATION OF THE INVITATION WHERE THERE IS A COMPELLING REASON. WE THINK THAT THE FAILURE TO COMPLY WITH THE REQUIREMENT OF FPR SEC. 1-2.207 (D) WHICH PROVIDES THAT NO AWARD SHALL BE MADE WHERE AMENDMENTS HAVE NOT BEEN ISSUED IN SUFFICIENT TIME AND THE FACT THAT THE AMENDMENT COULD HAVE A MATERIAL AFFECT UPON THE BID PRICES REPRESENT A COMPELLING REASON FOR CANCELING THE INVITATION. THEREFORE, OUR DECISION IS NOT IN CONFLICT WITH FPR SEC. 1-2.404-1.