B-131796, JUN. 14, 1957

B-131796, JUN. 14, 1957

TO THE HOMER ENGINEERING COMPANY, INC.:

WE REFER AGAIN TO YOUR TELEGRAM OF MAY 9, 1957, PROTESTING AWARD TO ANOTHER BIDDER OF CONTRACT NBY8162, ITEM 3, FOR REPAIRS TO SERVICE PIPING AT THE NEW LONDON NAVAL SUBMARINE BASE.

THE INVITATION FOR BIDS ISSUED APRIL 8, 1957, WAS AMENDED BY ADDENDUM NO. 1, DATED APRIL 12, 1957. WHEN BIDS WERE OPENED ON APRIL 30, 1957, IT WAS DETERMINED THAT YOUR BID OF $20,218 ON ITEM 3 WAS LOW. NEVERTHELESS, AWARD ON THE ITEM WAS MADE TO THE NEXT LOWER BIDDER, A. DIERKS AND CO., INC., BROOKLYN, N.Y., WHOSE BID WAS WAS $20,568. YOUR BID WAS REJECTED BECAUSE YOU DID NOT ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 1 PRIOR TO OPENING.

ADDENDUM NO. 1 INCREASED THE MINIMUM HOURLY WAGE RATES PAYABLE FOR CERTAIN TYPES OF LABOR TO BE PERFORMED IN CARRYING OUT THE CONTRACT. YOU POINT OUT IN YOUR TELEGRAM THAT THE INCREASE INVOLVED IN THE ADDENDUM WAS LESS THAN $100 WHICH IS SIGNIFICANTLY LESS THAN THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOWER ONE. YOU ALSO STATE THAT YOU ALREADY WERE PAYING IN EXCESS OF THE MINIMUM RATE PRESCRIBED IN ADDENDUM NO. 1 AND HAD NOTIFIED THE DIRECTOR OF ENGINEERING THAT YOU WERE WILLING TO TAKE THE CONTRACT WITHOUT ANY INCREASE AND THAT THE FAILURE TO ACKNOWLEDGE THE ADDENDUM WAS MERELY AN OVERSIGHT.

BIDDERS WERE PUT ON NOTICE IN THREE SEPARATE INSTANCES TO ACKNOWLEDGE RECEIPT OF ADDENDA. PARAGRAPH 1, ENTITLED "BIDS" WHICH APPEARS ON THE REVERSE SIDE OF THE FIRST PAGE OF THE INVITATION PROVIDES THAT "BIDS WHICH DO NOT REFERENCE ALL ADDENDA * * * MAY BE CONSIDERED INFORMAL.' PARAGRAPH 5-05 OF THE SPECIFICATION PROVIDES "EACH BIDDER SHALL REFER IN HIS BID TO ALL ADDENDA TO THIS SPECIFICATION; FAILURE TO DO SO MAY CONSTITUTE AN INFORMALITY IN THE BID.' FINALLY, THE ADDENDUM ITSELF CONTAINS A NOTICE THAT "EACH BIDDER SHALL REFER IN HIS BID TO ALL ADDENDA; FAILURE TO DO SO MAY CONSTITUTE AN INFORMALITY IN THE BID.'

YOUR FAILURE TO ACKNOWLEDGE THE ADDENDUM RESULTED IN A VARIANCE BETWEEN YOUR BID AND THE TERMS OF THE INVITATION AS AMENDED. WHERE THE VARIATION GOES TO PRICE, QUANTITY, OR QUALITY, IT IS CONSIDERED MATERIAL AND THE BID CONTAINING SUCH VARIATION MUST BE DEEMED NOT RESPONSIVE TO THE INVITATION AND THEREFORE BE DISREGARDED.

OBVIOUSLY, AN INCREASE IN THE STIPULATED MINIMUM WAGE RATE COULD AFFECT THE PRICE QUOTED BY THE BIDDER. WHILE YOU CONTEND THAT YOU WERE ALREADY PAYING WAGES IN EXCESS OF THE MINIMA CONTAINED IN THE ADDENDUM, THE FACT REMAINS THAT THE MATTER AFFECTED BY THE ADDENDUM WAS A FACTOR NORMALLY BEARING UPON THE PRICE OR COST OF THE WORK. SUCH VARIATION IS MATERIAL, THEREFORE, AND FAILURE TO REFERENCE IT IN THE BID COULD NOT BE WAIVED. COMP. GEN. 508.

A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE TWO PARTIES. IT IS WELL RECOGNIZED THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE. YOUR OFFER PROPOSED ONLY TO COMPLY WITH THE PROVISIONS OF THE ORIGINAL INVITATION. THEREFORE, THE GOVERNMENT COULD NOT, WITHOUT YOUR CONSENT, HAVE ACCEPTED YOUR OFFER AND REQUIRED PERFORMANCE IN ACCORDANCE WITH THE INVITATION AS AMENDED BY THE ADDENDUM. TO GIVE YOU AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION AS AMENDED, OR TO PRECLUDE AWARD TO YOU BY ALLEGING NON-RECEIPT OF THE ADDENDUM, OR SAYING NOTHING, WOULD GIVE YOU AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION. SUCH ADVANTAGE WOULD BE CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT.

UNDER THE FACTS AS STATED AND IN ACCORDANCE WITH THE FOREGOING, WE PERCEIVE NO BASIS FOR HOLDING THAT THE AWARD IN THIS INSTANCE WAS LEGALLY INVALID.