B-142422, APR. 7, 1960

B-142422, APR. 7, 1960

TO SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF MARCH 29, 1960, WITH ENCLOSURES, FROM THE CHIEF, BRANCH OF PLANT DESIGN AND CONSTRUCTION, BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, NEW MEXICO, REQUESTING A DECISION AS TO THE PROPRIETY OF CONSIDERING THE BID OF A AND L EXCAVATING, SUBMITTED IN RESPONSE TO INVITATION DATED JANUARY 8, 1960, FOR PROJECT NO. BU 110-559, COVERING CERTAIN WATER STORAGE IMPROVEMENTS AT THE STANDING ROCK AGENCY AT FORT YATES, NORTH DAKOTA. THE FILE CONTAINS A PROTEST REGISTERED BY THE NEXT LOWEST BIDDER AGAINST THE AWARD OF A CONTRACT TO THE ABOVE-NAMED FIRM ON THE GROUND THAT ITS BID IS NONRESPONSIVE.

THE RECORD DISCLOSES THAT A SEALED BID IN PROPER FORM WAS MAILED BY A AND L EXCAVATING ON FEBRUARY 19, 1960; THAT ADDENDA NOS. 1 AND 2 MADE A PART OF THE TERMS OF THE INVITATION WERE RECEIVED BY THE FIRM SUBSEQUENTLY; THAT ON FEBRUARY 25, 1960, THE BIDDER WAS ADVISED BY TELEGRAM FROM THE PROCURING OFFICE OF A DEFERMENT OF THE OPENING DATE, AND WAS FURTHER NOTIFIED THAT ANY MODIFICATIONS TO ITS BID DUE TO THE ISSUANCE OF ANY AMENDMENTS TO THE INVITATION MIGHT BE MADE BY LETTER OR TELEGRAM PRIOR TO THE TIME AND DATE FIXED FOR BID OPENING. RECEIPT OF SUCH AMENDMENTS WAS ACKNOWLEDGED BY THE BIDDER THROUGH THE RETURN OF A SIGNED CARD FORM TRANSMITTED WITH THE ADDENDA, SOLELY FOR THAT PURPOSE.

TRANSMITTED WITH THE AMENDMENTS ALSO WAS A NOTICE TO ALL BIDDERS REQUESTING ACKNOWLEDGMENT OF RECEIPT THEREOF BY PROPER NOTATION ON THE BID FORM, OR BY TELEGRAPHIC NOTIFICATION TOGETHER WITH ANY BID MODIFICATION IF THE BID HAD BEEN MAILED. BIDDERS WERE WARNED THAT FAILURE TO COMPLY WITH THESE INSTRUCTIONS MIGHT CAUSE THEIR BID TO BE DISREGARDED. THE LOW BIDDER, A AND L EXCAVATING COULD NOT ENTER ON THE BID FORM THE PROPER NOTATION ACKNOWLEDGING RECEIPT OF THE AMENDMENTS SINCE IT PREVIOUSLY HAD FORWARDED ITS BID TO THE PROCUREMENT AGENCY. ALSO, SINCE IT ACKNOWLEDGED RECEIPT THEREOF BY RETURNING THE CARD FORM FURNISHED FOR THAT PURPOSE AND, SINCE IT DID NOT WISH TO MODIFY ITS OFFER ON ACCOUNT OF THE AMENDMENT, THE BIDDER DID NOT FURTHER ACKNOWLEDGE BY TELEGRAPHIC COMMUNICATION HAVING RECEIVED THE AMENDMENTS AS REQUESTED BY THE ADMINISTRATIVE OFFICE.

THE SECOND LOW BIDDER, KOVASH, INC., BY LETTER OF MARCH 16, 1960, PROTESTED TO THE BUREAU OF INDIAN AFFAIRS AGAINST ANY CONSIDERATION BEING ACCORDED THE LOW BID ON THE GROUND THAT A CONTRACT AWARDED UNDER THE FOREGOING FACTS WOULD NOT BE ENFORCEABLE. IT IS OUR OPINION THAT SUCH POSITION IS UNTENABLE. CERTAINLY, THE LOW BIDDER WOULD BE ESTOPPED TO DENY THAT THE ADDENDA WERE RECEIVED, OR THAT IT WAS AWARE OF, AND INTENDED TO COMPLY WITH THE REQUIREMENTS THEREOF, WHICH RELATED TO THE PAYMENT OF MINIMUM WAGE RATES IN PERFORMANCE OF THE WORK. THE RETURN OF THE PREVIOUSLY-MENTIONED CARD TO THE CONTRACTING OFFICER CONSTITUTED ACTUAL ACKNOWLEDGMENT OF RECEIPT OF THE ADDENDA, AND IN VIEW OF THE BIDDER'S FAILURE ON THE CARD OR THEREAFTER TO MODIFY ITS BID, IT IS OUR VIEW THAT RETURN OF THE CARD CONSTITUTED AN INCORPORATION OF THE ADDENDA IN HIS BID AND A REAFFIRMATION OF THE BID PREVIOUSLY SUBMITTED AS INCLUDING THE ADDENDA.

ACCORDINGLY, THE BID OF A AND L EXCAVATING SHOULD BE CONSIDERED AS RESPONSIVE TO THE INVITATION.