B-166333, APR. 8, 1969

B-166333, APR. 8, 1969

TO MR. V. K. ALMOND, JR.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1969, AND THE EARLIER TELEGRAM FROM MR. ALEXANDER M. SALZBERG, PROTESTING AGAINST THE REJECTION OF THE LOW BID OF YOUR COMPANY FOR NAVAL FACILITIES ENGINEERING COMMAND CONTRACT N62470-69-B-0793 FOR THE CONSTRUCTION OF A BACHELOR OFFICERS QUARTERS WITH MESS AT THE NAVAL AMPHIBIOUS BASE, LITTLE CREEK, NORFOLK, VIRGINIA.

THE NAVAL FACILITIES ENGINEERING COMMAND PROPOSES TO REJECT YOUR COMPANY'S LOW BID EVALUATED AT $1,690,499.80, ABOUT $19,500 LESS THAN THE NEXT LOW BID, BECAUSE IT FAILED TO ACKNOWLEDGE AN AMENDMENT OF THE INVITATION FOR BIDS, ADDENDUM NO. 2, WHICH ADDED A REQUIREMENT FOR THE FURNISHING AND INSTALLATION OF WALL HYDRANTS ON TWO SIDES OF THE BUILDING AND INCREASED THE MINIMUM HOURLY WAGE RATES REQUIRED TO BE PAID BY THE DAVIS-BACON ACT. THE NAVAL FACILITIES ENGINEERING COMMAND ESTIMATES THE COST OF THE ADDED WORK TO BE ABOUT $52.80 AND THE COST OF THE INCREASED WAGE RATES TO BE ABOUT SEVERAL THOUSAND DOLLARS. AT A MEETING WITH REPRESENTATIVES OF OUR OFFICE, YOU SUBMITTED AFFIDAVITS THAT THE ITEMS IN THE ADDENDUM WERE INCLUDED IN THE BID AND THAT THE ACKNOWLEDGMENT OF THE ADDENDUM WAS OMITTED INADVERTENTLY. ALSO, YOU FURNISHED INFORMATION THAT THE ADDED COST OF THE WALL HYDRANTS WAS ESTIMATED AT ABOUT $80 AND YOU CONCURRED THAT THE DIFFERENCE BETWEEN THE ORIGINAL AND THE AMENDED WAGE RATES WOULD RUN OVER $2,000.

PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), RELATIVE TO MINOR INFORMALITIES OR IRREGULARITIES IN BIDS WHICH MAY BE WAIVED, READS IN PART 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, AND NO EFFECT ON 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. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"/IV) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF --

"/B) THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PURCHASING CTIVITY; AND.'

ASPR HAS THE FORCE AND EFFECT OF LAW. PAUL V UNITED STATES, 371 U.S. 245, 255.

ALTHOUGH IT COULD BE ARGUED THAT THE ADDITION OF THE HYDRANTS IN THE ADDENDUM HAS MERELY A TRIVIAL EFFECT ON THE PRICE OF THE CONTRACT, IT DOES INCREASE THE QUANTITY OF THE WORK. AS NOTED ABOVE, ASPR PROVIDES THAT, IN ADDITION TO HAVING NO EFFECT OR MERELY A TRIVIAL EFFECT ON PRICE, THE UNACKNOWLEDGED AMENDMENT MUST ALSO HAVE "NO EFFECT ON * * * QUANTITY" FOR THE ABSENCE OF ACKNOWLEDGMENT TO BE CONSIDERED AN INFORMALITY. THUS, THE FAILURE TO ACKNOWLEDGE THE ADDENDUM DOES NOT COME WITHIN THE PURVIEW OF ASPR 2-405 AS CONSTITUTING A MINOR INFORMALITY. THAT IS REASON ENOUGH TO CONCLUDE THAT THE FAILURE TO ACKNOWLEDGE ADDENDUM NO. 2 IS FATAL.