B-241062, Jan 8, 1991, 90-2 CPD 18

B-241062, Jan 8, 1991, 90-2 CPD 18

PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Acknowledgment - Responsiveness DIGEST: 1. Contracting agency properly rejected as nonresponsive a bid that failed to acknowledge amendment which, in addition to modifying and clarifying specifications, contained a modification of the applicable wage determination which increased wage rates, and there is no evidence that the bidder's employees are covered by a collective bargaining agreement binding the firm to pay wages not less than those prescribed by the Secretary of Labor. PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Notification 2. Agency's failure to send bidder a copy of a material amendment was not improper where the protester was not on the solicitation mailing list, and the record does not support the protester's allegation that the agency sent the firm the original solicitation, or suggest that there are significant deficiencies in the contracting agency's solicitation process, and the protester did not avail itself of every reasonable opportunity to obtain the amendment.

Attorneys

North Santiam Paving Co.:

North Santiam Paving Co. protests the rejection of its low bid as nonresponsive under invitation for bids (IFB) No. R6-18-90-454, issued by the Forest Service, Department of Agriculture, for the reconstruction of a concrete boat launch, asphalt drive lane and floating dock in the Willamette National Forest. North Santiam contends that its bid was improperly rejected as nonresponsive for failing to acknowledge an amendment because the modifications contained in the amendment did not materially affect its bid, and the agency failed to send it a copy of the amendment.

We deny the protest.

This acquisition was synopsized in the June 7, 1990, Commerce Business Daily (CBD), and this notice directed interested firms to contact the contract specialist for copies of the IFB. In addition, pre-solicitation notices were sent to 45 firms on a computer generated "planholders" list of firms which had performed "Bridge and Dock" work for the agency, or had previously listed themselves as interested in performing such work.

The IFB was issued on July 9, and copies were mailed to the 45 firms on the planholders list. Two amendments subsequently were issued, the first on July 12 and the second on July 27, neither of which changed the scheduled August 7 bid opening date. Amendment 2 included a modified wage rate determination under the Davis-Bacon Act, 40 U.S.C. Sec. 276(a) (1988), which increased the wage rate for several labor categories, as well as two specification modifications. The specifications were modified to require hot dipped galvanized steel, instead of common steel, for the angle iron and plate steel-- a change estimated to increase the cost of performance by approximately $1,303-- and to clarify certain IFB drawings to indicate that the required asphalt thickness was two-and-one-half inches, not six inches as suggested in some of the drawing views.

Seven bids were received at bid opening, and North Santiam was the apparent low bidder at $80,786. The contracting officer reviewed North Santiam's bid and determined it nonresponsive for failing to acknowledge amendment 2. As a result, the contract was awarded to the second low bidder, Flintstone Crushing and Construction Co., for $89,489.10. North Santiam timely protested to the contracting agency and, when its agency- level protest was denied, North Santiam filed this protest in our Office.

North Santiam protests that it did not acknowledge the amendment because the contracting agency never sent it to North Santiam, and contends that its failure to acknowledge should be waived as a minor informality since the amendment changes do not materially affect its bid, and it is willing to perform the work, in accordance with the changes in amendment 2, at its original bid price.

Generally, a bid which does not include an acknowledgment of a material amendment must be rejected because absent such acknowledgment, the bidder is not obligated to comply with the terms of the amendment, and its bid is thus nonresponsive. LaCorte ECM, Inc., B-231448.2, Aug. 31, 1988, 88-2 CPD Para. 195. North Santiam's offer, after bid opening, to comply is of no effect since failure to acknowledge an amendment increasing wage rates cannot be cured after bid opening regardless of how de minimis the increase in wage rates, unless the bidder's employees are already covered by a collective bargaining agreement binding the firm to pay wages not less than those prescribed by the Secretary of Labor and reflected in the new wage determination. ABC Paving Co., 66 Comp.Gen. 47 (1986), 86-2 CPD Para. 436. The reason is that the prescribed wage rates are mandated by statute, so that if an agency were to give the bidder an opportunity to acknowledge the wage rate amendment after bid opening, the bidder could decide to render itself ineligible for award by choosing not to cure the defect. Thus, the bid must be rejected as nonesponsive where the bidder is not already obligated to pay wages not less than those prescribed. LaCorte ECM, Inc., B-231448.2, supra. Here, since there is nothing in the record showing that North Santiam's employees are covered by an appropriately binding collective bargaining agreement, North Santiam's failure to acknowledge the wage rate amendment cannot be waived as immaterial, or a minor informality, and its bid was properly rejected as nonresponsive on this basis.

North Santiam next argues that it was improper for the agency to reject its bid as nonresponsive since it was the agency's failure to send it the amendment that prevented North Santiam from acknowledging the amendment.

The Competition in Contracting Act of 1984 (CICA), 41 U.S.C. 253(a)(1)(A) (1988), requires contracting agencies to obtain full and open competition through the use of competitive procedures, the dual purpose of which is to ensure that a procurement is open to all responsible sources and to provide the government with the opportunity to receive fair and reasonable prices. In pursuit of these goals, it is a contracting agency's affirmative obligation to utilize reasonable methods for the dissemination of solicitation documents to prospective competitors. See Ktech Corp., B-240578, Dec. 4, 1990, 90-2 CPD Para. ***. In particular, the government is required by regulation to add to the solicitation mailing list all firms that have been furnished invitations in response to their requests, so that they will be furnished copies of any amendments, unless it is known that the request was made by an entity which is not a prospective bidder. Federal Acquisition Regulation (FAR) Sec. 14.205(3). Concurrent with the agency's obligations in this regard, prospective contractors have the duty to avail themselves of every reasonable opportunity to obtain solicitation documents, especially in a sealed bid procurement. See Fort Myer Constr. Corp., B-239611, Sept. 12, 1990, 90-2 CPD Para. 200. Consequently, a prospective offeror's nonreceipt of solicitation documents will not justify overturning a contract award absent significant deficiencies in the dissemination process, the failure to receive fair and reasonable prices, or a deliberate attempt by the contracting agency to exclude a particular prospective offeror, even where the late or nonreceipt has the effect of eliminating the source from the competition. Ktech Corp., B-240578, supra.

Here, in addition to announcing this acquisition in the CBD in a timely manner, the agency sent pre-solicitation notices to firms contained on a computer generated planholders list. /1/ As a result of the agency's efforts, it received seven bids, five of which were apparently responsive, and made an award at a price it determined to be fair and reasonable. Although North Santiam suggests that it requested a copy of the solicitation from the contracting agency and was sent both the original solicitation and amendment 1 from the contracting agency, the protester has provided no evidence to support these allegations. The agency employee responsible for mailing the solicitations and amendments has no recollection of the protester's call or of sending the firm either the IFB or the amendment; she further states that, as a matter of procedure, she consistently posts the names of requesters of solicitations on the planholders list in order to insure that they are sent copies of amendments. Thus, the agency asserts that it did not send any solicitation documents to North Santiam, and surmises that the protester received a copy of the IFB and amendment 1 from one of its suppliers or from a bulletin board.

Further, we do not believe that the protester availed itself of every reasonable opportunity to obtain all the solicitation documents; North Santiam did not contact the agency during the period of almost 1 month between the issuance of amendment 1 and the bid opening date when, for instance, it could have telephoned the agency several days before bid opening to confirm that only one amendment had been issued. See Fort Myer Constr. Corp., B-239611, supra. Under these circumstances, we do not find that the agency failed to satisfy its obligations under FAR Secs. 14.205(3), or that there are significant deficiencies in the agency's dissemination process.

The protest is denied.

/1/ North Santiam was not on this list because it is not listed in the computer database as a firm that performs this type of construction.