B-146132, JUN. 27, 1961

B-146132, JUN. 27, 1961

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER R11.1 OF JUNE 13, 1961, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE RESPONSIVENESS OF BIDS SUBMITTED BY JOHN OSTER MANUFACTURING CO., INC., AND INLAND ELECTRONICS CORPORATION UNDER IFB-383- 891-61.

JOHN OSTER MANUFACTURING CO., INC., SUBMITTED A LETTER BID UNDER "IFB-383 -891-61 AND AMENDMENTS NO. 1 AND 2 THERETO.' THE SUPPLY OF BID INVITATIONS COVERING THE IMMEDIATE PROCUREMENT WAS EXHAUSTED BEFORE THE COMPANY MADE A REQUEST FOR ONE. AS A RESULT, THE COMPANY MADE ARRANGEMENTS TO EXAMINE THE SET THAT WAS AVAILABLE AT A FIELD INSTALLATION. AT THE TIME OF EXAMINATION AMENDMENT 3 HAD NOT BEEN DISTRIBUTED AND THEREFORE WAS NOT A PART OF THE INVITATION IN THE FIELD FACILITY. ALSO, AS THE LIST OF BIDDERS IN THE ISSUING OFFICE DID NOT INCLUDE THE COMPANY, AMENDMENT 3 WAS NOT SENT TO IT WHEN ISSUED. AMENDMENT 3 REVISED THE INVITATION IN THE FOLLOWING RESPECTS:

(1) CLARIFIED THAT DRAWING, ENGINEERING AND DATA LISTS REQUIRED BY ITEM 5 SHOULD INCLUDE ALL FIVE INDICATORS AND THE CONTROL BOX THAT ARE A PART OF THE TEST SETS THAT ARE THE MAJOR PURPOSE OF THE PROCUREMENT;

(2) DIRECTED ATTENTION TO THE REQUIREMENT FOR FURNISHING VENDORS' DRAWINGS THAT WAS ALREADY A PART OF THE INVITATION;

(3) CHANGED THE LOCATION OF THE PROVISIONING CONFERENCE FROM THE CONTRACTOR'S PLANT TO THE AVIATION SUPPLY OFFICE IN PHILADELPHIA, PENNSYLVANIA;

(4) CORRECTED THE CITATION TO BUWEPS INSTRUCTION FROM NUMBER 00.53C TO 4423.2 WHICH SUPERSEDED THE FORMER WITHOUT ANY CHANGE IN CONTENT;

(5) ADDED THE REQUIREMENT THAT A VENDORS' ITEM LIST BE FURNISHED UNDER THE CONTRACT;

(6) DELETED THE REQUIREMENT FOR AN-MS DRAWINGS; AND

(7) CORRECTED A WORD MISSPELLED IN AMENDMENT 2.

THE CONTRACTING OFFICER IS OF THE OPINION THAT ANY EFFECT AMENDMENT 3 MAY HAVE ON BID PRICE IS NEGLIGIBLE AND THE OVER-ALL EFFECT MIGHT BE A REDUCTION INSTEAD OF AN INCREASE IN PRICE. HOWEVER, IT IS QUESTIONED WHETHER AN AWARD CAN BE MADE TO THE COMPANY IN VIEW OF ITS FAILURE TO SUBMIT THE BID ON THE STANDARD BID FORM AND TO ACKNOWLEDGE RECEIPT OF AMENDMENT 3.

ORDINARILY, THE SUBMISSION OF A LETTER BID INDICATING AN INTENTION TO BE BOUND BY THE CONTRACT TERMS AND CONDITIONS SPECIFIED IN THE INVITATION TO BID AND AMENDMENTS THERETO IS NOT OBJECTIONABLE. THE TEST OF WHETHER AN AWARD CAN BE MADE ON THE BASIS OF SUCH A BID IS WHETHER THE BIDDER WAS AWARE OF AND INTENDED TO MEET ALL THE GOVERNMENT'S CONTRACT REQUIREMENTS. 37 COMP. GEN. 785. IN THE IMMEDIATE CASE, THE BIDDER NEVER INDICATED BEFORE THE BID OPENING THAT IT INTENDED TO BE BOUND BY ANYTHING MORE THAN THE ORIGINAL INVITATION AND THE TWO SUCCEEDING AMENDMENTS WHICH WERE ALL IT HAD KNOWLEDGE OF WHEN IT BID. HOWEVER, IF AN AMENDMENT DOES NOT AFFECT PRICE, QUALITY OR QUANTITY OF THE PROCUREMENT, THE FAILURE TO ACKNOWLEDGE IT MAY BE WAIVED AS AN INFORMALITY. BUT THE CONTRACTING OFFICER HAS INDICATED THAT AMENDMENT 3 COULD HAVE SOME BEARING ON THE PRICE OF THE PROCUREMENT IN THAT HE ESTIMATES A SAVINGS WOULD RESULT FROM THE OVER ALL CHANGES REQUIRED BY THE AMENDMENT. THEREFORE, SINCE IT IS INDICATED THAT THE ITEMS IN THE AMENDMENT COULD HAVE A BEARING ON PRICE, IT IS NOT CONSIDERED THAT IT WOULD BE PROPER TO WAIVE THE FAILURE TO ACKNOWLEDGE THAT AMENDMENT. WHILE THE CONTRACTING OFFICER ESTIMATES THAT THE CHANGE IN PRICE WOULD BE NEGLIGIBLE AND THEN WOULDONLY RESULT IN A DECREASE IN THE BID PRICE, THIS APPEARS TO BE A MATTER OF CONJECTURE, SINCE IT IS NOT CERTAIN HOW MUCH WEIGHT ANY BIDDER MAY PLACE UPON THE REQUIREMENTS IMPOSED BY THE AMENDMENT IN ACCESSING ITS BID PRICE. WHILE AFTER THE EXPOSURE OF ALL BIDS THE BIDDER MAY BE WILLING TO COMPLY WITH THE AMENDMENT AT NO ADDITIONAL COST, THERE IS NO WAY OF ASCERTAINING WITH CERTAINTY WHAT ITS INTENTION WOULD HAVE BEEN IF IT HAD BEEN AWARE OF THE AMENDMENT BEFORE THE OPENING OF BIDS.

IN A LETTER OF JUNE 13, 1961, IT WAS REQUESTED THAT THE RESPONSIVENESS OF THE BID OF INLAND ELECTRONICS CORPORATION, THE NEXT LOW BIDDER, BE CONSIDERED IN THE EVENT AN AWARD CANNOT BE MADE TO JOHN OSTER MANUFACTURING CO., INC. A QUESTION ARISES OVER THE INLAND ELECTRONICS CORPORATION BID BECAUSE OF ITS FAILURE TO INCLUDE A BID PRICE OR A NOTATION OF "NO CHARGE" FOR ITEM 5 ADDED BY AMENDMENT 2 TO THE INVITATION.

PARAGRAPH 1 OF AMENDMENT 2 TO THE INVITATION PROVIDED AS FOLLOWS:

"THE FOLLOWING ADDITIONAL ITEM IS HEREBY ADDED TO THOSE ALREADY LISTED:

TABLE

"ITEM DESCRIPTION QUANTITY UNIT PRICE AMOUNT

5 DRAWING, ENGINEERING,

AND ASSOCIATED

LISTS: FOR ITEM 1.

NSD (288) PHILA.

(CODE CDD) 1 SET"

THE BIDDER ACKNOWLEDGED THE AMENDMENT IN THE SPACES PROVIDED FOR ACKNOWLEDGEMENT IN THE AMENDMENT WITHOUT ANY FURTHER INSERTION BEING MADE ON THE AMENDMENT FORM.

THE INVITATION FOR BIDS SPECIFIED IN THE CONTRACT FOR THE SUBJECT PROCUREMENT (ITEM 1 AND ASSOCIATED ITEMS) WOULD BE MADE TO THE OVER-ALL LOW BIDDER. WHILE THE INVITATION SOLICITED UNIT AND TOTAL PRICES FOR EACH GROUP OF THE PRIME ITEM ACCORDING TO WHERE IT WAS TO BE DELIVERED, EACH BIDDER WAS REQUESTED TO SPECIFY AN AGGREGATE TOTAL PRICE FOR THE ENTIRE PROCUREMENT. THE BIDDER RESPONDED WITH THE UNIT PRICES AND AGGREGATE TOTAL. ALTHOUGH SPACE WAS PROVIDED ON AMENDMENT 2 FOR THE INCLUSION OF A PRICE ON ITEM 5, THE NOTICE TO BIDDERS AT THE BOTTOM OF THE PAGE, IN ADDITION TO PROVIDING THAT BIDDERS MUST ACKNOWLEDGE RECEIPT OF AMENDMENT, SPECIFIED:

"IF, BY VIRTUE OF THIS AMENDMENT, IT IS DESIRED TO MODIFY A BID ALREADY SUBMITTED, SUCH MODIFICATION MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED EACH TELEGRAM OR LETTER MAKES REFERENCE TO THIS AMENDMENT AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED ABOVE.'

THE REASONABLE INFERENCE THAT WOULD FOLLOW FROM THIS STATEMENT WAS THAT IT WAS NOT NECESSARY TO STATE A PRICE ON THE FORM OR OTHER WRITTEN MEANS SPECIFIED THEREIN UNLESS A CHANGE IN THE ORIGINAL BID PRICE WAS DESIRED. THEREFORE, THE FAILURE TO STATE A PRICE FOR ITEM 5 FOLLOWS AS AN INDICATION THAT THE ORIGINAL AGGREGATE BID PRICE QUOTED ON THE BID FORM WAS INTENDED TO INCLUDE THE ADDITIONAL ITEM WITHOUT ANY CHANGE IN PRICE, ESPECIALLY WHERE THE BIDDER BY ITS RECEIPTED ACKNOWLEDGEMENT ON THE FORM HAS INDICATED AN AWARENESS OF THE ADDITIONAL REQUIREMENT AND HAS NOT DONE ANYTHING IN ITS BID THAT WOULD INDICATE IT DOES NOT INTEND TO FURNISH THE ITEM. IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE BIDDER'S OMISSION DID NOT RENDER THE BID INCOMPLETE NOR NONRESPONSIVE, BUT DID OBLIGATE THE BIDDER TO SUPPLY THE ITEM AS A PART OF THE AGGREGATE TOTAL PRICE.

THE ENCLOSURES THAT ACCOMPANIED THE LETTER OF JUNE 13, 1961, ARE RETURNED AS REQUESTED.