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B-173837, OCT 18, 1971

B-173837 Oct 18, 1971
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IT IS IMMATERIAL THAT PROTESTANT HAS CONFIRMED ITS LOW BID PRICE AND STATED THAT THE BID WAS BASED ON THE AMENDMENT. THE PROTEST IS THEREFORE DENIED. 517.74 WAS REJECTED BECAUSE IT FAILED TO ACKNOWLEDGE AN AMENDMENT TO THE IFB. THAT YOU WERE THEREAFTER MAILED A COPY OF THE IFB AND THE AMENDMENT ON STANDARD FORM 30. YOU ADVISE THAT THE FORM ON WHICH THE AMENDMENT WAS PROVIDED WAS NOT CLEARLY PRINTED AND YOU HAVE SUBMITTED A COPY THEREOF. YOU STATE THAT THERE WAS NOTHING ON THE FACE OF THE AMENDMENT WHICH INDICATED THAT IT WAS TO BE RETURNED WITH THE BID. YOU FURNISHED IN WRITING A VERIFICATION OF THE AMOUNT OF THE BID AND A STATEMENT THAT IT WAS BASED UPON THE AMENDMENT. THE PRINTING ON THE COPY OF THE AMENDMENT IS NOT ENTIRELY DISTINCT.

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B-173837, OCT 18, 1971

BID PROTEST - BID RESPONSIVENESS - FAILURE TO ACKNOWLEDGE AMENDMENT DECISION DENYING PROTEST AGAINST REJECTION OF A LOW BID UNDER AN IFB ISSUED BY THE GSA FOR FURNISHING AND INSTALLING DRAPERIES AND ACCESSORY HARDWARE IN ENLISTED MEN'S QUARTERS AT THE NAVY CONSTRUCTION BATTALION CENTER, GULFPORT, MISSISSIPPI. A CONVERSATION BETWEEN PROTESTANT AND A REPRESENTATIVE OF THE CONTRACTING OFFICER AS TO THE CONTENT OF THE INVITATION AND AMENDMENT PRIOR TO SUBMITTING A BID CANNOT SATISFY THE REQUIREMENT FOR ACKNOWLEDGING THE AMENDMENT IN THE BID. BECAUSE RESPONSIVENESS MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF, IT IS IMMATERIAL THAT PROTESTANT HAS CONFIRMED ITS LOW BID PRICE AND STATED THAT THE BID WAS BASED ON THE AMENDMENT. THE PROTEST IS THEREFORE DENIED.

TO MISS KAY BRADY:

WE REFER TO YOUR LETTER OF SEPTEMBER 11, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS (IFB) NO. 4PN-B-77575-1, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), ATLANTA, GEORGIA, FOR FURNISHING AND INSTALLING DRAPERIES AND ACCESSORY HARDWARE IN THE BARRACKS FOR BACHELOR ENLISTED MEN AT THE U.S. NAVY CONSTRUCTION BATTALION CENTER, GULFPORT, MISSISSIPPI.

YOUR LOW BID IN THE AMOUNT OF $31,517.74 WAS REJECTED BECAUSE IT FAILED TO ACKNOWLEDGE AN AMENDMENT TO THE IFB, WHICH, ACCORDING TO THE CONTRACTING OFFICE WOULD INCREASE THE COST OF THE DRAPERIES BY ABOUT $10,000. THE OTHER THREE BIDS RECEIVED UNDER THE INVITATION RANGED FROM $41,651.39 TO $45,809.43.

YOU STATE THAT WHEN YOU LEARNED OF THE ISSUANCE OF THE IFB YOU CALLED THE GSA BUSINESS SERVICE CENTER IN ATLANTA AND SPOKE TO A REPRESENTATIVE OF THE CONTRACTING OFFICER WHO FURNISHED YOU WITH THE DETAILS OF THE SOLICITATION, INCLUDING THE AMENDMENT OF THE IFB CHANGING THE SPECIFICATIONS, AND THAT YOU WERE THEREAFTER MAILED A COPY OF THE IFB AND THE AMENDMENT ON STANDARD FORM 30. YOU ADVISE THAT THE FORM ON WHICH THE AMENDMENT WAS PROVIDED WAS NOT CLEARLY PRINTED AND YOU HAVE SUBMITTED A COPY THEREOF. ALSO, YOU STATE THAT THERE WAS NOTHING ON THE FACE OF THE AMENDMENT WHICH INDICATED THAT IT WAS TO BE RETURNED WITH THE BID. FURTHER, YOU INDICATE THAT AFTER THE OPENING OF BIDS, YOU FURNISHED IN WRITING A VERIFICATION OF THE AMOUNT OF THE BID AND A STATEMENT THAT IT WAS BASED UPON THE AMENDMENT.

THE PRINTING ON THE COPY OF THE AMENDMENT IS NOT ENTIRELY DISTINCT. FURTHER, IT IS NOTED THAT THE BOX IN FRONT OF THE STATEMENT IN BLOCK 9 THAT "THE ABOVE NUMBERED SOLICITATION IS AMENDED AS SET FORTH IN BLOCK 12" IS NOT CHECKED. HOWEVER, BLOCK 12 WHICH CONTAINS THE CHANGE IN THE SPECIFICATIONS IS DISTINCT AND SPECIFIC AND IS DENOMINATED AS AN "AMENDMENT NO. I TO SOL. 4PN-B-77575-1." ALTHOUGH THE PRINTING IN BLOCK 9 IS UNCLEAR, THE STATEMENT THAT "THIS BLOCK APPLIES ONLY TO AMENDMENTS OF SOLICITATIONS" IS EASILY READABLE. FURTHER, ALTHOUGH SOME OF THE INSTRUCTIONS IN BLOCK 9 FOR ACKNOWLEDGING AMENDMENTS ARE NOT CLEAR, THE STATEMENT THEREON THAT "FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER," IS CLEARLY APPARENT. THEREFORE, HAD YOU READ THE ENTIRE AMENDMENT, WE FEEL THAT YOU WOULD HAVE BEEN ON NOTICE OF THE NECESSITY FOR ACKNOWLEDGMENT OF THE AMENDMENT.

WHILE YOU MAY HAVE HAD A CONVERSATION WITH THE CONTRACTING OFFICER'S REPRESENTATIVE AS TO THE CONTENT OF THE INVITATION AND AMENDMENT PRIOR TO SUBMITTING A BID, SUCH CIRCUMSTANCE CANNOT SATISFY THE REQUIREMENT FOR ACKNOWLEDGING THE AMENDMENT IN THE BID. IN THAT CONNECTION, OUR OFFICE HAS HELD THAT EVEN WHERE A REGISTERED MAIL RECEIPT WAS SIGNED FOR THE AMENDMENT BY A REPRESENTATIVE OF THE BIDDER WHEN IT WAS RECEIVED, SUCH RECEIPT WAS NOT SUFFICIENT TO PERMIT CONSIDERATION OF THE BID WHICH CONTAINED NO ACKNOWLEDGMENT OF THE AMENDMENT. B-141299, DECEMBER 14, 1959. THE REASON FOR THE RULE REQUIRING ACKNOWLEDGMENT OF AN AMENDMENT IN THE BID IS THAT WITHOUT IT THE BID WOULD BE RESPONSIVE ONLY TO THE ORIGINAL INVITATION AND PERFORMANCE THEREFORE COULD NOT BE REQUIRED IN ACCORDANCE WITH THE AMENDED SPECIFICATIONS.

FURTHER, IN 41 COMP. GEN. 550, 552 (1962), IT WAS STATED:

"THE QUESTION WITH REGARD TO THE EFFECT OF A BIDDER'S FAILURE TO ACKNOWLEDGE AN ADDENDUM HAS BEEN BEFORE OUR OFFICE ON A NUMBER OF OCCASIONS. AS WAS STATED IN 37 COMP. GEN. 785 THE GENERAL RULE ON THE EFFECT OF FAILURE TO ACKNOWLEDGE AN ADDENDUM IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT IN THE MANNER REQUIRED BY THE INVITATION OR AMENDMENT CANNOT BE WAIVED. THIS GENERAL RULE IS PREDICATED UPON THE PRINCIPLE THAT THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL ASPECT OF AN INVITATION, AS AMENDED, WOULD BE PREJUDICIAL TO OTHER BIDDERS. B-138392, FEBRUARY 1959. IT IS ALSO SAID THAT THE FAILURE TO ACKNOWLEDGE GIVES THE FAILING BIDDER AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT MATERIAL ADDENDA HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. B-141299, DECEMBER 14, 1959."

ALTHOUGH, AFTER THE OPENING OF BIDS, YOU HAVE VERIFIED THE AMOUNT OF THE BID AND STATED THAT IT WAS BASED ON THE AMENDMENT, THE FACT REMAINS THAT THE AMENDMENT WAS NOT ACKNOWLEDGED WITH THE BID AND IT HAS BEEN HELD THAT:

" *** IT IS A FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF, WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATIONS SUBMITTED AFTER BID OPENING, IN FAIRNESS TO THOSE BIDDERS WHOSE OFFERS STRICTLY COMPLIED WITH ALL THE SOLICITATION REQUIREMENTS." 50 COMP. GEN. 193, 220 (1970).

IT CANNOT BE CONCLUDED FROM THE BID THAT WAS SUBMITTED THAT IT WAS BASED ON THE AMENDED SPECIFICATIONS. THEREFORE, THE REJECTION OF THE BID AS NON -RESPONSIVE WAS PROPER.

ACCORDINGLY, THE PROTEST IS DENIED.

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