B-193258, MARCH 21, 1979

B-193258, MARCH 21, 1979

DIGEST: 1. MERE ACKNOWLEDGEMENT OF RECEIPT OF AMENDMENT INCREASING TOTAL QUANTITY OF UNITS IS NOT SUFFICIENT TO CONSTITUTE OFFER OF ADDITIONAL UNITS AT SAME PRICE BID FOR ORIGINAL QUANTITY. LANGUAGE OF BLOCK 9 OF STANDARD FORM 30, "AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT," DOES NOT RELIEVE BIDDERS FROM QUOTING PRICES ON QUANTITIES ADDED BY AMENDMENT. 2. LOW RESPONSIVE BID MAY BE REDUCED AFTER BID OPENING; LOW BIDDER'S TELEGRAPHIC MODIFICATION WILL NOT AFFECT RELATIVE STANDINGS OF OTHER BIDDERS.

VENTURA MANUFACTURING COMPANY:

VENTURA MANUFACTURING COMPANY (VENTURA) PROTESTS THE AWARD OF A CONTRACT TO COLUMBUS JACK CORPORATION (COLUMBUS JACK) UNDER INVITATION FOR BIDS (IFB) NO. N00383-78-B-0536. THIS SOLICITATION WAS ISSUED BY THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY (ASO), FOR THE PROCUREMENT OF AIRCRAFT TOW BARS.

THE ORIGINAL IFB SCHEDULE CONTAINED THREE STEPLADDER QUANTITIES, 0001AA, 0001AB AND 0001AC, RESPECTIVELY CONTAINING 1,216, 988 AND 760 ITEMS DIVIDED AMONG VARIOUS DESTINATIONS. THE SOLICITATION PROVIDED THAT "ONE AWARD WILL BE MADE * * * TO THE LOW OVERALL OFFEROR ON ALL THOSE ITEMS FOR WHICH REQUIREMENTS NECESSITATE AWARD" AND THAT "ONLY ONE OF THE STEPLADDER QUANTITIES, HOWEVER, WILL BE SELECTED FOR AWARD."

BY AMENDMENT 0001 TO THE SOLICITATION, THE ASO DELETED STEPLADDER QUANTITIES 0001AB AND 0001AC, LEAVING ONLY 0001AA, WHICH WAS INCREASED FROM 1216 EACH TO 1607 EACH. AMENDMENT 0002, WHICH MADE SOME CHANGES TO THE SPECIFICATIONS, IS NOT AT ISSUE.

VENTURA'S BID CONSISTED OF THE ORIGINAL IFB AND AMENDMENTS 0001 AND 0002, ALL SIGNED AND DATED ON AUGUST 4, 1978. UNIT PRICES WERE LISTED ON THE ORIGINAL IFB SCHEDULE ADJACENT TO THE THREE STEPLADDER QUANTITIES. THE PRICES LOWERED AS THE QUANTITY INCREASED: (TABLE OMITTED)

ALTHOUGH VENTURA ACKNOWLEDGED RECEIPT OF AMENDMENT 0001 BY SIGNING AND RETURNING THE AMENDMENT, IT PLACED NO PRICE ADJACENT TO THE REVISED QUANTITY OF 1607 FOR STEPLADDER QUANTITY 0001AA. SINCE THIS WAS THE ONLY QUANTITY AVAILABLE FOR AWARD (THE OTHER TWO STEPLADDER QUANTITIES HAVING BEEN DELETED), IN THE ABSENCE OF A PRICE FOR THAT QUANTITY, THE AGENCY REJECTED VENTURA'S BID AS NONRESPONSIVE.

THE PROTESTER OBSERVES THAT BLOCK 9 OF STANDARD FORM 30 CONTAINING THE SOLICITATION AMENDMENT STATED AS FOLLOWS:

"IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED, SUCH CHANGE MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THE SOLICITATION AND THIS AMENDMENT, AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED."

VENTURA INTERPRETS THIS TO MEAN THAT IF NO CHANGE WERE INTENDED IN PRICE AS A RESULT OF THE CHANGED QUANTITY, THE PRICE INSERTED IN THE ORIGINAL SCHEDULE OF THE IFB WOULD REMAIN VALID. THE PROTESTER CLAIMS IT HAD NO DESIRE TO CHANGE ITS PRICE; THUS, IT WAS UNNECESSARY TO QUOTE A PRICE FOR THE INCREASED QUANTITY. VENTURA ADDS THAT THE AMENDMENT MADE NO PROVISION FOR BIDDERS WHO INTENDED TO MAINTAIN THEIR ORIGINAL BID PRICES TO EXPRESS SUCH AN INTENTION WHEN ACKNOWLEDGING THE AMENDMENT.

THE PROTESTER ALSO QUESTIONS HOW AN AWARD COULD BE MADE TO COLUMBUS JACK AT A UNIT PRICE OF $984 EACH WHEN THE ABSTRACT OF BIDS REVEALED THAT THE ONLY TIMELY BID RECEIVED FROM COLUMBUS JACK WAS FOR A UNIT PRICE OF $1,115 EACH. VENTURA ARGUES THAT REGARDLESS OF WHETHER COLUMBUS JACK MODIFIED ITS BID BY "MAIL OR TELEGRAM OR WHATEVER," THE ABSTRACT IS EVIDENCE THAT ITS MODIFIED PRICE WAS NOT RECEIVED BY ASO PRIOR TO THE BID OPENING SPECIFIED.

WITH REGARD TO THE REJECTION OF VENTURA'S BID, A VERY SIMILAR SITUATION WAS THE SUBJECT OF OUR DECISION B-169084, MAY 7, 1970. IN THAT DECISION, WE STATED THAT BLOCK 9 OF STANDARD FORM 30 ONLY INSTRUCTS BIDDERS AS TO HOW TO CHANGES IN THEIR OFFERS WHICH RESULT FROM AN AMENDMENT TO A SOLICITATION. HOWEVER, WE STATED, BLOCK 9 "DOES NOT RELIEVE A BIDDER FROM QUOTING PRICES ON ADDITIONAL ITEMS ADDED TO THE PROCUREMENT BY THE AMENDMENT." WE FURTHER NOTED:

"THE SOLICITATION CAUTIONED ALL BIDDERS THAT A BID WHICH OFFERED TO FURNISH ONLY PART OF THE SUPPLIES WOULD BE CONSIDERED NONRESPONSIVE AND REJECTED IN ITS ENTIRETY. IT IS THEREFORE ABUNDANTLY CLEAR THAT ALL BIDDERS WERE REQUIRED TO FURNISH A PRICE FOR ALL OF THE SUPPLIES AND THAT ONLY ONE AWARD WOULD BE MADE TO THE LOW OVERALL BIDDER, AND NOTHING IN THE AMENDMENT INDICATED ANY CHANGE IN THIS REQUIREMENT. A MERE ACKNOWLEDGMENT OF THE AMENDMENT IN ACCORDANCE WITH THE PRINTED LANGUAGE THEREON DOES NOT APPEAR TO CONSTITUTE AN OFFER TO FURNISH THE ADDITIONAL QUANTITY AT THE PRICE QUOTED FOR THE ORIGINAL QUANTITIES, AND THE BID MUST THEREFORE BE CONSIDERED AS NONRESPONSIVE."

A BIDDER CAN BIND ITSELF TO THE CONTENTS OF SOME AMENDMENTS MERELY BY ACKNOWLEDGING RECEIPT THEREOF. AN AMENDMENT CHANGING THE SPECIFICATIONS IS ONE EXAMPLE. HOWEVER, WHEN A BIDDER DOES NOT INSERT A PRICE UPON AN AMENDMENT INCREASING THE CONTRACT QUANTITY, DOUBT IS CREATED AS TO WHETHER THE BIDDER HAS BOUND ITSELF TO FURNISH THE ADDITIONAL QUANTITY, AND IF SO, AT WHAT PRICE. THE EXISTENCE OF THIS DOUBT REQUIRES REJECTION OF THE BID. A BID MUST BE SUFFICIENTLY DEFINITE SO THAT THE GOVERNMENT CAN ACCEPT IT WITHOUT RESORT TO EXTRANEOUS EVIDENCE. A BIDDER CANNOT BE PERMITTED TO CLARIFY HIS BID WITH SELF-SERVING EXPLANATIONS AFTER BID OPENING.

WE REALIZE THE FORM OF THE AMENDMENT MAY HAVE CONTRIBUTED TO VENTURA'S FAILURE TO PRICE THE INCREASED QUANTITY, BECAUSE IT DID NOT PROVIDE A SPACE FOR BIDDERS TO INSERT PRICES BASED ON THE INCREASED QUANTITY. VENTURA ARGUES THAT "THE AMENDMENT MAKES NO PROVISION FOR QUOTE 'ALL PRICES REMAIN UNCHANGED'." ASO ADMITS THAT IT INADVERTENTLY FAILED TO DESIGNATE A SPACE FOR SETTING OUT A REVISED PRICE, BUT CONTENDS THAT "THERE WAS AMPLE ROOM ON THE AMENDMENT DOCUMENT TO INSERT A PRICE ADJACENT TO THE CHANGES MADE IN STEPLADDER QUANTITY 0001AA."

IN CONNECTION WITH B-169084, SUPRA, WHICH ALSO INVOLVED AN ASO PROCUREMENT, WE ADVISED ASO THAT IT SHOULD FORMULATE AMENDMENTS SO AS TO LEAVE NO DOUBT ABOUT WHAT WAS REQUIRED. ASO STATES THAT MORE POSITIVE STEPS MIGHT BE REQUIRED TO PREVENT A RECURRENCE OF THIS SITUATION, AND THAT CONSIDERATION IS BEING GIVEN TO A PROCEDURE FOR USING FORMS WHICH CONTAIN PRICING COLUMNS.

WE ALSO DISAGREE WITH VENTURA'S SECOND ARGUMENT THAT COLUMBUS JACK SUBMITTED A LATE BID MODIFICATION. THE THREE LOWEST BIDS RECEIVED BY 2:00 P.M., AUGUST 15, 1978 WERE THE FOLLOWING:

BIDDER ITEM 0001AA UNIT PRICE

T&K MACHINE, INC. $ 930.31

VENTURA MANUFACTURING CO. 1,095.00

COLUMBUS JACK CORP. 1,115.00

T&K MACHINE, INC. WITHDREW ITS BID, ALLEGING MISTAKE. VENTURA'S BID WAS REJECTED AS NONRESPONSIVE. AS A RESULT, COLUMBUS JACK WAS CONSIDERED THE LOWEST RESPONSIVE BIDDER.

COLUMBUS JACK ATTEMPTED BY WIRE TO MODIFY ITS BID PRICE. THE WIRE WAS RECEIVED IN THE ASO COMPOUND COMMUNICATIONS CENTER 59 MINUTES AFTER BID OPENING. PARAGRAPH 7(D) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES THAT "A LATE MODIFICATION OF AN OTHERWISE SUCCESSFUL BID WHICH MAKES ITS TERMS MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY BE ACCEPTED." WE HAVE PREVIOUSLY HELD THAT A LOW RESPONSIVE BID MAY BE REDUCED AFTER BID OPENING. P&N CONSTRUCTION COMPANY, INC., 56 COMP.GEN. 328, 333(1977), 77-1 CPD 88. A LOW BIDDER'S TELEGRAPHIC MODIFICATION REDUCING ITS BID PRICE WILL NOT AFFECT THE RELATIVE STANDINGS OF THE OTHER BIDDERS. 40 COMP.GEN. 466, 468(1961). BECAUSE COLUMBUS JACK WAS THE OTHERWISE SUCCESSFUL BIDDER, ITS LATE MODIFICATION COULD BE ACCEPTED.

VENTURA'S PROTEST IS DENIED.