B-151188, MAY 8, 1963

B-151188, MAY 8, 1963

TO HOLTON CONSTRUCTION CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1963, PROTESTING AGAINST THE ACTION OF THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO SPECIFICATION NO. 47168/63, COVERING THE CONVERSION OF ROOM 1160 AND MODIFICATION OF ROOM 1153 INTO OFFICE SPACE, BUILDING 50, U.S. NAVAL AIR STATION, POINT MUGU, CALIFORNIA.

THE INVITATION FOR BIDS WAS AMENDED BY ADDENDUM NO. 1 DATED FEBRUARY 21, 1963, WHICH WAS FURNISHED TO INTERESTED BIDDERS BY REGISTERED MAIL. ADDENDUM NO. 1 INCREASED THE SCOPE OF THE WORK BY REQUIRING THE REMOVAL OF A WIRE PARTITION AND BY CHANGING THE SIZE OF THE STEEL STUDS. AT THE TIME OF THE ISSUANCE OF THE ADDENDUM THE PROCUREMENT ACTIVITY ESTIMATED THAT THE WORK COVERED BY THE ADDENDUM WOULD INCREASE THE COST OF THE PROJECT BY $90. ADDENDUM NO. 1 PROVIDED ON THE FACE THEREOF THAT "EACH BIDDER SHALL REFER TO THIS ADDENDUM IN HIS BID; FAILURE TO DO SO MAY CONSTITUTE AN INFORMALITY IN THE BID.' WHEN BIDS WERE OPENED ON FEBRUARY 28, 1963, IT WAS DETERMINED THAT YOUR BID OF $19,580 ON THE PROJECT WAS LOW. NEVERTHELESS, AN AWARD ON THE PROJECT WAS MADE TO THE NEXT LOWEST BIDDER, ALLIED CONSTRUCTION AND ENGINEERING, WHOSE BID WAS $20,339. YOUR BID WAS REJECTED BECAUSE YOU DID NOT ACKNOWLEDGE ON THE BID FORM CONSIDERATION OF ADDENDUM NO. 1 PRIOR TO OPENING OF THE BIDS.

BY LETTER DATED FEBRUARY 28, 1963, YOU ADVISED THE OFFICER IN CHARGE OF CONSTRUCTION THAT THROUGH AN OVERSIGHT YOU FAILED TO ACKNOWLEDGE THE RECEIPT OF ADDENDUM NO. 1 ON THE BID FORM FOR THE PROJECT. YOU POINTED OUT THAT THE ADDENDUM HAD BEEN RECEIVED BY YOU AS EVIDENCED BY A REGISTERED MAIL RECEIPT AND YOU STATED THAT THE ADDITIONAL WORK COVERED BY THE ADDENDUM WOULD COST $60 AND THAT SUCH COST HAD BEEN INCLUDED IN YOUR BID PRICE FOR THE PROJECT.

UNDER PUBLIC ADVERTISING PROCEDURES THE GENERAL RULE IS THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785. THE FACT THAT THE REGISTERED MAIL RECEIPT WAS SIGNED BY A REPRESENTATIVE OF YOUR FIRM IS NOT SUFFICIENT TO PERMIT AN EXCEPTION TO THE STATED RULE. SEE B-138242, JANUARY 2 1959. WHILE FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDA IN THE FORM AND MANNER PROVIDED HAS BEEN WAIVED WHERE IT WAS CLEAR ON THE FACE OF THE BID THAT ACCEPTANCE OF THE BID WOULD REQUIRE PERFORMANCE OF THE WORK COVERED BY THE ADDENDA (34 COMP. GEN. 581), WE ARE OF THE VIEW THAT THE EXCEPTION CANNOT BE EXTENDED TO PERMIT CONSIDERATION OF EVIDENCE EXTRANEOUS TO THE BID. TO HOLD OTHERWISE WOULD GIVE A BIDDER AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT MATERIAL ADDENDA HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. SUCH OPTION WOULD OBVIOUSLY PERMIT AN ADVANTAGE OVER CONFORMING BIDS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. B-131796, JUNE 14, 1957.

A BID SUBMITTED IN RESPONSE TO AN INVITATION IS AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. IF AN AMENDMENT WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS NOT ACKNOWLEDGED BY THE BIDDER PRIOR TO BID OPENING, HIS OFFER IS FOR SOMETHING OTHER THAN THE PERFORMANCE SOLICITED BY THE TERMS OF THE INVITATION, INCLUDING ANY AMENDMENTS. TO PERMIT HIM TO PERFORM IN ACCORDANCE WITH THE INVITATION WITHOUT THE UNACKNOWLEDGED AMENDMENT WOULD BE CONTRARY TO THE STATUTES GOVERNING ADVERTISED PROCUREMENTS. UNITED STATES V. ELLICOTT, 223 U.S. 524; 543 (1911). ON THE OTHER HAND, TO PERMIT THE BIDDER TO AMEND HIS BID AFTER OPENING TO CONFORM TO THE SPECIFICATION AS MODIFIED BY ALL THE AMENDMENTS WOULD ALSO CONTRAVENE THE COMPETITIVE BIDDING STATUTES. 63 C.J.S. MUNICIPAL CORPORATIONS, SEC. 1003; 40 COMP. GEN. 447, 448.