B-147106, SEP. 25, 1961

B-147106, SEP. 25, 1961

TO NATIONAL CONSTRUCTION COMPANY:

WE HAVE YOUR LETTER OF SEPTEMBER 2, 1961, CONCERNING THE PROPOSED REJECTION OF YOUR LOW BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. NY -3-62-62 FOR CONSTRUCTION WORK AT NATICK, MASSACHUSETTS. THE INVITATION, ORIGINALLY ISSUED JULY 28, 1961, WAS AMENDED BY TWO ADDENDA ISSUED AUGUST 11 AND AUGUST 22, 1961, RESPECTIVELY. THE SECOND OF THESE TWO AMENDMENTS, ACCORDING TO THE ATOMIC ENERGY COMMISSION, REPRESENTS ADDITIONAL WORK APPROXIMATING $2,300 IN VALUE.

YOUR BID ON THE BASIC PROJECT PLUS ALTERNATE (A), WAS LOW AT $808,712, APPROXIMATELY $32,000 LESS THAN THE NEXT LOW BID, WHICH APPEARS TO BE NON- RESPONSIVE, AND APPROXIMATELY $34,000 LESS THAN THE THIRD LOW BID. THE CONTRACTING OFFICER HAS PROPOSED TO REJECT YOUR BID BECAUSE YOU FAILED TO ACKNOWLEDGE RECEIPT OF THE SECOND ADDENDUM AS REQUIRED BY PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS AND THE ADDENDUM ITSELF.

IN YOUR LETTER OF SEPTEMBER 2 YOU POINT OUT THAT THE FAILURE TO ACKNOWLEDGE THE ADDENDUM WAS DUE SOLELY TO A CLERICAL OVERSIGHT; THAT YOU PROPOSE TO PERFORM THE WORK, INCLUDING ADDENDUM NO. 2, AT YOUR BID PRICE; AND THAT THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT BID IS SIGNIFICANTLY HIGHER THAN THE POSSIBLE COST REPRESENTED BY ADDENDUM NO. 2.

IT HAS CONSISTENTLY BEEN OUR POSITION IN CIRCUMSTANCES SUCH AS THIS THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE AN ADDENDUM WHICH AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE WORK TO BE PERFORMED MAY NOT BE WAIVED AS AN INFORMALITY AND REQUIRES THE REJECTION OF THAT BID. 33 COMP. GEN. 508; B-144147, NOVEMBER 15, 1960.

THE INVITATION, INCLUDING THE ADDENDA, REPRESENTS THE WORK THAT THE GOVERNMENT SEEKS TO HAVE ACCOMPLISHED. THE BID SUBMITTED IS IN LEGAL CONSIDERATION AN OFFER WHICH UPON ACCEPTANCE BECOMES A BINDING CONTRACT. IN THE FORM IN WHICH YOUR BID WAS SUBMITTED IT AMOUNTED TO AN OFFER TO PERFORM WITHOUT CONSIDERATION OF THE SECOND AMENDMENT. THEREFORE IT WAS NOT RESPONSIVE TO THE TERMS OF THE INVITATION IN ITS FINAL FORM AND COULD NOT BE ACCEPTED. A BASIC TENET OF THE COMPETITIVE BID SYSTEM IS THAT ONLY A BID WHICH CONFORMS IN EVERY MATERIAL RESPECT TO THE TERMS OF THE INVITATION MAY BE ACCEPTED. SEE 40 COMP. GEN. 447. THEREFORE, YOUR BID COULD NOT BE ACCEPTED IN THE FORM SUBMITTED. HOWEVER, TO PERMIT YOU TO AMEND YOUR BID AFTER OPENING TO INCLUDE THE SECOND ADDENDUM WOULD VIOLATE ANOTHER BASIC PROPOSITION OF THE SYSTEM: THAT BIDS MAY NOT BE CHANGED AFTER OPENING. SEE 17 COMP. GEN. 554. IN ADDITION, IF YOU WERE GIVEN THE OPPORTUNITY TO AMEND YOUR BID TO INCLUDE THE ADDENDUM YOU WOULD IN EFFECT BE GIVEN THE OPTION AFTER OPENING, WHEN ALL OF THE OTHER BIDS HAD BEEN MADE PUBLIC, TO DECIDE WHETHER YOU WISHED TO BECOME ELIGIBLE FOR THE CONTRACT. SUCH AN OPTION IS OBVIOUSLY ALSO INCONSISTENT WITH THE COMPETITIVE BID SYSTEM.

IN ACCORDANCE WITH THE FOREGOING YOUR BID MAY NOT BE ACCEPTED. WE REGRET THAT THE CIRCUMSTANCES REQUIRE THIS CONCLUSION WHICH RESULTS IN INCREASING THE COST OF THE PROJECT TO THE GOVERNMENT. HOWEVER, WE BELIEVE THAT ADHERENCE TO THE COMPETITIVE BID SYSTEM IS ULTIMATELY TO THE ADVANTAGE OF BOTH THE GOVERNMENT AND PROSPECTIVE CONTRACTORS.