B-146354, NOV. 27, 1961
Highlights
INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7. TO THE CONTRACTING OFFICER THAT YOU WERE INFORMED YOUR LOW BID WAS NOT ACCEPTED FOR THE REASON YOU HAD NOT ACKNOWLEDGED RECEIPT OF AN AMENDMENT TO THE INVITATION FOR BIDS DISTRIBUTED BY REGULAR MAIL. WE HAVE CAREFULLY REVIEWED THE AVAILABLE FILES AND FIND THAT THE ADVERTISED SPECIFICATIONS DID NOT INCLUDE THE CORRECT WAGE RATE SCHEDULE. AN APPROPRIATE WAGE RATE SCHEDULE WAS SUBSTITUTED BY AMENDMENT NO. 1. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND ALL BIDS WITH THE EXCEPTION OF THAT RECEIVED FROM YOUR FIRM ACKNOWLEDGED RECEIPT OF THE AMENDMENT. THE ABSTRACT OF BIDS SHOWS THAT FAILURE ON YOUR PART TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT WAS CONSIDERED AS MAKING YOUR BID NONRESPONSIVE AND.
B-146354, NOV. 27, 1961
TO YOUNG ASSOCIATES, INC.:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1961, AND ITS ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. ENG-44-008-61-107, AT FORT BELVOIR, VIRGINIA.
IT APPEARS FROM THE COPY OF YOUR LETTER OF JULY 3, 1961, TO THE CONTRACTING OFFICER THAT YOU WERE INFORMED YOUR LOW BID WAS NOT ACCEPTED FOR THE REASON YOU HAD NOT ACKNOWLEDGED RECEIPT OF AN AMENDMENT TO THE INVITATION FOR BIDS DISTRIBUTED BY REGULAR MAIL. YOU ALLEGED THAT THE AMENDMENT HAD NOT BEEN RECEIVED AND THAT IT COULD NOT POSSIBLE AFFECT THE BID ANYWAY AS IT HAD TO DO WITH SLIGHT CHANGES IN WAGE RATES, THE RATES ON THE MAJOR CRAFTS REQUIRED FOR THIS JOB REMAINING THE SAME.
WE HAVE CAREFULLY REVIEWED THE AVAILABLE FILES AND FIND THAT THE ADVERTISED SPECIFICATIONS DID NOT INCLUDE THE CORRECT WAGE RATE SCHEDULE. AN APPROPRIATE WAGE RATE SCHEDULE WAS SUBSTITUTED BY AMENDMENT NO. 1, ISSUED JUNE 12, 1961, WHICH CONTAINED AN INCREASE IN WAGE RATES OF STRUCTURAL STEEL PAINTERS. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND ALL BIDS WITH THE EXCEPTION OF THAT RECEIVED FROM YOUR FIRM ACKNOWLEDGED RECEIPT OF THE AMENDMENT. THE ABSTRACT OF BIDS SHOWS THAT FAILURE ON YOUR PART TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT WAS CONSIDERED AS MAKING YOUR BID NONRESPONSIVE AND, AS SUCH, IT COULD NOT BE CONSIDERED FOR AWARD.
AS YOU WERE ADVISED IN THE CONTRACTING OFFICER'S LETTER OF JULY 6, 1961, YOUR PROTEST WAS ADMINISTRATIVELY DENIED ON THE BASIS THAT THE AMENDMENT INCREASED CERTAIN WAGE RATES APPLICABLE TO THE WORK SO IT REASONABLY WOULD AFFECT THE PRICE, AND THAT NEGOTIATIONS COULD NOT BE ENTERED INTO WITH A BIDDER AFTER OPENING RELATIVE THERETO AS THIS WOULD VIOLATE THE INTEGRITY OF THE BIDDING SYSTEM AND PREJUDICE OTHER BIDDERS. THIS WAS IN CONFORMANCE WITH PARAGRAPH 2-405 (IV) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES IN MATERIAL PART THAT THE FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS MAY BE CONSIDERED AS A "MINOR INFORMALITY OR IRREGULARITY" ONLY IF (A) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID THEREON, OR (B) THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE GOVERNMENT PURCHASING ACTIVITY.
THE GENERAL RULE IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT IN THE MANNER REQUIRED BY THE INVITATION OR AMENDMENT CANNOT BE WAIVED. SEE 37 COMP. GEN. 785 AND THE DECISIONS CITED THERE. THE INVITATION AND THE AMENDMENT CONTAINED APPROPRIATE PROVISIONS REQUIRING ACKNOWLEDGMENT OF ADDENDA AND AMENDMENTS.
FROM A REVIEW OF THE FACTS AND CIRCUMSTANCES INVOLVED IN THE LIGHT OF THE APPLICABLE GENERAL RULE WE FIND NO REASONABLE BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION IN THIS CASE.