B-169414, AUG. 4, 1970

B-169414, AUG. 4, 1970

BID PROTEST -- ADDENDUM ACKNOWLEDGMENT AFFIRMATION OF DECISION OF JULY 7, 1970, HOLDING THAT ZENITH'S BID UNDER AFSC AERONAUTICAL SYSTEMS DIVISION INVITATION WAS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE AMENDMENT. HOLDING IN "CHRISTIAN DOCTRINE" CASE NOT APPLICABLE WHERE RESPONSIVENESS OF BID IS INVOLVED.

TO ZENITH RADIO CORPORATION:

WE REFER TO YOUR LETTERS OF JULY 9 AND 17, 1970, REQUESTING RECONSIDERATION OF OUR DECISION 50 COMP. GEN. -- (B-169414, JULY 7, 1970), WHEREIN WE DETERMINED THAT ZENITH'S BID UNDER AFSC AERONAUTICAL SYSTEMS DIVISION (ASD), WRIGHT-PATTERSON AIR FORCE BASE, OHIO, INVITATION FOR BIDS NO. F33657-70-B-0056 WAS NONRESPONSIVE BY REASON OF THE FAILURE TO ACKNOWLEDGE AN AMENDMENT IMPLEMENTING THE REQUIREMENTS OF DEFENSE PROCUREMENT CIRCULAR (DPC) NO. 74, ENTITLED "SUBCONTRACTOR COST OR PRICING DATA AND AUDIT REQUIREMENTS."

THE FOLLOWING FACTS PERTINENT TO YOUR REQUEST FOR RECONSIDERATION ARE RESTATED FROM OUR DECISION OF JULY 7, 1970: DPC 74 WAS ISSUED ON OCTOBER 10, 1969, WITH AN EFFECTIVE DATE OF JANUARY 1, 1970, AND MADE THE FOLLOWING RELEVANT CHANGES IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR): REVISED ASPR 7-104.29(B) BY SUBSTITUTING A CLAUSE ENTITLED "PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA--PRICE ADJUSTMENTS (1970 JAN)" FOR THE NOVEMBER 1967 CLAUSE; REVISED ASPR 7 104.41(B) BY SUBSTITUTING A CLAUSE ENTITLED "AUDIT--PRICE ADJUSTMENTS (1970 JAN)" FOR THE APRIL 1969 CLAUSE; REVISED ASPR 7-104.42(B) BY SUBSTITUTING A CLAUSE ENTITLED "SUBCONTRACTOR COST OR PRICING DATA- PRICE ADJUSTMENTS (1970 JAN)" FOR THE MAY 1963 CLAUSE.

HOWEVER, THE GENERAL PROVISIONS OF THE SUBJECT INVITATION AS ISSUED ON JANUARY 16, 1970, INCORPORATED THE PRIOR VERSIONS OF THE CLAUSES IN THE FOLLOWING TERMS:

"CLAUSE ASPR DATE OF

NUMBER REFERENCE CLAUSE TITLE CLAUSE

41 7-104.29(B) PRICE REDUCTION FOR 1967 NOV

DEFECTIVE COST OR

PRICING DATA--PRICE

ADJUSTMENTS

48 7-104.41(B) AUDIT--PRICE 1969 APR

ADJUSTMENTS

51 7-104.42(B) SUBCONTRACTOR COST 1963 MAY"

AND PRICING DATA--PRICE

ADJUSTMENTS

ON JANUARY 19, 1970, ASD ISSUED AMENDMENT 0001, WHICH DELETED THE FOREGOING CLAUSES AND SUBSTITUTED IN LIEU THEREOF THE CLAUSES REQUIRED BY DPC 74. YOUR FIRM FAILED TO ACKNOWLEDGE AMENDMENT 0001. UPON INVESTIGATION, IT WAS DETERMINED THAT THE AMENDMENT WAS MAILED BY ASD, AND THAT YOUR FIRM DID NOT RECEIVE THE AMENDMENT.

AFTER AN EXAMINATION OF THE REVISED CLAUSES ADDED BY AMENDMENT 0001 IN LIGHT OF THE PRIOR VERSIONS OF THE CLAUSES, WE CONCLUDED THAT THE REVISED CLAUSES REPRESENTED A MATERIAL CHANGE IN THE LEGAL RELATIONSHIP OF THE PARTIES, SO THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT COULD NOT BE CONSIDERED A MINOR INFORMALITY AND WAIVED IN ACCORDANCE WITH ASPR 2-405. IN RESPONSE TO YOUR GENERAL EXPRESSION OF DISAGREEMENT, WE HAVE REEXAMINED THE GROUNDS FOR THIS CONCLUSION AND WE FIND NO BASIS FOR ALTERING OUR VIEW. YOUR LETTER OF JULY 17, 1970, HOWEVER, FOCUSES PRIMARILY ON A CONTENTION NOT EXPRESSLY TREATED IN OUR DECISION OF JULY 7 BUT, NEVERTHELESS, NECESSARY TO OUR CONCLUSION. IN THIS CONNECTION, YOU MAINTAIN THAT:

" *** THE IFB, AS ORIGINALLY ISSUED, CONTAINED A LISTING OF ASPRS IN THE GENERAL PROVISIONS, OR 'BOILER PLATE' SECTION. OBVIOUSLY THROUGH A MERE CLERICAL OR SCRIVENER'S OVERSIGHT THE EFFECTIVE DATE OF DPC 74 DID NOT APPEAR BESIDE THE LISTED ASPRS. THE OMISSION AMOUNTED TO NOTHING MORE THAN THE FAILURE TO INCLUDE THE EFFECTIVE DATE OF JANUARY 1, 1970 AFTER THE PERTINENT ASPRS WHICH WERE IN FACT LISTED. HOWEVER, THERE WAS NO INTENT ON THE PART OF EITHER THE GOVERNMENT OR ZENITH TO EXCLUDE DPC 74 AT ANY TIME.

"ZENITH CONTRACTING PERSONNEL DID NOT DETECT THE CLERICAL OMISSION OF THE APPROPRIATE DATE IN THE BOILER-PLATE LISTING BUT WERE FULLY AWARE THAT THE WELL PUBLICIZED DPC 74, BY ITS TERMS MANDATORY BEYOND QUESTION, WOULD BE IN THE CONTRACT AS A MATTER OF LAW. *** BEFORE THE IFB WAS ISSUED, AS POINTED OUT ABOVE, ZENITH'S CONTRACTING PERSONNEL WERE FULLY AWARE OF THE MANDATORY PROVISIONS OF DPC 74 AND THAT UNDER THE WELL KNOWN CHRISTIAN DOCTRINE (G. L. CHRISTIAN AND ASSOCIATES V UNITED STATES (CT. OF CLAIMS, 1963) 312 F 2D 418, 420) THIS REGULATION HAD THE SAME FORCE AND EFFECT AS IF SPECIFICALLY ENACTED BY CONGRESS AS PART OF THE GOVERNING STATUTES. WAS ABSOLUTELY BINDING ON ALL CONTRACTORS AND WOULD BE READ INTO ANY CONTRACT WHETHER PHYSICALLY INCLUDED OR INADVERTENTLY OMITTED. *** "

IT MUST BE EMPHASIZED THAT IN RESOLVING QUESTIONS OF RESPONSIVENESS, A BIDDER'S INTENTION MUST BE DETERMINED FROM THE BID ITSELF. SEE 45 COMP. GEN. 221, 222 (1965) AND 42 ID. 502, 504 (1963). IN THE LATTER CITED CASE, WE MADE THE FOLLOWING OBSERVATION, WHICH WE BELIEVE IS PERTINENT HERE:

"IT IS TRUE THAT THE FAILURE TO COMPLY WITH A SUBSTANTIAL REQUIREMENT WILL VITIATE THE BID, AND (YOUR) REPRESENTATIVES *** MAY WELL HAVE KNOWN THIS AND INTENDED TO BE BOUND BY ALL TERMS AND CONDITIONS, BUT THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. *** "

MOREOVER, WE CANNOT AGREE THAT THE "CHRISTIAN DOCTRINE" MAY BE RELIED ON TO OVERCOME THE SUBSTANTIVE EFFECT OF YOUR FIRM'S FAILURE TO ACKNOWLEDGE AMENDMENT 0001. WE HAVE HELD IN THIS REGARD THAT THE "CHRISTIAN DOCTRINE," AS EXTENDED IN CONDEC CORPORATION V UNITED STATES, 369 F. 2D 753 (CT. CL. 1966), IS NOT APPLICABLE IN SITUATIONS WHERE THE RESPONSIVENESS OF A BID IS IN QUESTION. 48 COMP. GEN. 593, 600-601 (1969), CITING 48 ID. 171 (1968) AND 47 ID. 682 (1968).

FURTHER, WE ARE UNABLE TO CONCLUDE THAT THE CLAUSES REQUIRED BY DPC 74 WERE INCORPORATED BY REFERENCE INTO THE INVITATION AS ORIGINALLY ISSUED. WE BELIEVE THAT THE INCORPORATION BY REFERENCE ARGUMENT WOULD HAVE MERIT IF THE INVITATION AS ORIGINALLY ISSUED HAD MERELY REFERENCED ASPR PROVISIONS; HOWEVER, THE DESCRIPTION WENT BEYOND THAT. APART FROM IDENTIFYING THE CLAUSE CONTAINED IN THE REFERENCED ASPR PROVISION, THE INVITATION SPECIFIED THE DATE OF EACH CLAUSE, A DATE OBVIOUSLY AT VARIANCE WITH THE CLAUSES PROVIDED BY DPC 74.

ACCORDINGLY, OUR DECISION OF JULY 7 IS AFFIRMED.