B-154802, AUG. 14, 1964

B-154802, AUG. 14, 1964

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JULY 20, 1964, FROM HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE CHIEF OF ENGINEERS, SUBMITTING FOR OUR DECISION, AT THE REQUEST OF C. G. SCHMIDT, INC., ITS PROTEST AGAINST REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. ENG-11-032 64-34, FOR REHABILITATION OF BUILDINGS AND RELATED WORK IN THE DORMITORY AREA AT VOLK FIELD, CAMP DOUGLAS, WISCONSIN.

BIDS WERE OPENED AT 2 P.M. ON THURSDAY, JULY 9, 1964, AND AT THAT TIME A TOTAL OF FIVE BIDS WERE RECEIVED, AS FOLLOWS:

CHART

BIDDER TOTAL BID PRICE SCHEDULE "A" C. G. SCHMIDT, INC.

$213,260 ROTH BROTHERS 221,500 COX CONSTRUCTION COMPANY, INC. 230,000 PATHMAN CONSTRUCTION COMPANY 232,710 RIDAHL CONSTRUCTION, INC. 273,000

THE INVITATION ISSUED ON JUNE 1, 1964, REQUIRED BIDDERS TO ACKNOWLEDGE RECEIPT OF ALL AMENDMENTS AND PROVIDED THAT FAILURE TO ACKNOWLEDGE MAY CAUSE REJECTION OF THE BID.

THE RECORD SHOWS THAT FIVE AMENDMENTS WERE ISSUED DURING THE ADVERTISING PERIOD. THE ARMY ENGINEERING DIVISION REPRESENTED THAT, IN ITS OPINION, AMENDMENT NO. 1 WOULD INCREASE THE CONTRACT PRICE FOR WORK UNDER SCHEDULE "A" IN THE SUM OF $2,160; AMENDMENT NO. 2 WOULD INCREASE THE PRICE $250; AND AMENDMENT NO. 3 WOULD INCREASE THE PRICE $275; A TOTAL OF $2,685. AMENDMENT NO. 4 WHICH TEMPORARILY POSTPONED THE BID OPENING FROM JUNE 25 TO JULY 9, 1964, AND AMENDMENT NO. 5 WHICH DELETED ALL CONSTRUCTION UNDER SCHEDULE "B" AND ADVISED THAT BIDS WOULD ONLY BE RECEIVED FOR WORK COVERED UNDER SCHEDULE "A," HAD NO EFFECT ON THE OVER-ALL PRICE.

THE LOW BID AT THE OPENING WAS SUBMITTED BY THE PROTESTANT. IT IS REPORTED THAT WHEN THE BIDS WERE OPENED THE PAPERS FOUND ENCLOSED IN THE SCHMIDT ENVELOPE WERE AS FOLLOWS:

(1) PAGE B-5 OF THE BID FORM ENTITLED "BID PRICE SCHEDULE, SCHEDULE "A" (REHABILITATION OF BUILDINGS AND RELATED WORK IN THE DORMITORY AREA)" DULY FILLED OUT BUT, BEARING NO SIGNATURE.

(2) BID BOND DATED JULY 9, 1964, AND DULY EXECUTED BY C. G. SCHMIDT, INC., AS PRINCIPAL AND THE AETNA CASUALTY AND SURETY COMPANY AS SURETY FOR THE PROPER AMOUNT AND CLEARLY IDENTIFYING THE INVITATION NUMBER AND PROJECT AND HAVING THE CERTIFICATE AS TO CORPORATE PRINCIPAL DULY EXECUTED. NO OTHER PAPERS WERE ENCLOSED.

PAGE B-5 OF THE BID FORM, REFERRED TO ABOVE, WAS THAT ISSUED WITH AMENDMENT NO. 5 SINCE THE LEGEND AT THE BOTTOM OF THAT PAGE READS,"REVISED BY AMENDMENT NO. 5, 24 JUNE 1964.' THUS, IT IS CLEAR THAT SCHMIDT RECEIVED AMENDMENT NO. 5. HOWEVER, AT BID OPENING SCHMIDT HAD NOT ACKNOWLEDGED EITHER ORALLY OR IN WRITING RECEIPT OF AMENDMENTS NOS. 1-4.

ON JULY 10, 1964, A REPRESENTATIVE OF SCHMIDT INFORMED THE UNITED STATES ARMY ENGINEERING DISTRICT, CHICAGO OFFICE, THAT THE CORPORATION HAD INADVERTENTLY FAILED TO ENCLOSE THE BALANCE OF THE BID FORM IN ITS ORIGINAL SUBMITTAL AND THAT HE HAD SENT A COMPLETE SET OF THE BID FORMS BY CERTIFIED MAIL ON JULY 9 AS SOON AS THE OVERSIGHT HAD BEEN DISCOVERED. THE PAPERS WHICH WERE RECEIVED ON JULY 10 ACKNOWLEDGED ALL THE AMENDMENTS ISSUED SUBSEQUENT TO THE INVITATION FOR BIDS.

WHETHER THE FAILURE OF THE BIDDER TO SIGN A BID FORM IS ENOUGH OF AN IRREGULARITY TO DENY AWARD OF A CONTRACT, AND WHETHER THE OMISSION OF A BIDDER TO ACKNOWLEDGE AMENDMENTS TO AN INVITATION FOR BIDS, WHICH IN FACT AFFECTS THE COST OF WORK, MAY BE REGARDED AS A SUBSTANTIAL DEFECT, CAUSING THE BID TO BE CONSIDERED NOT RESPONSIVE TO THE INVITATION, ARE NOT THE DECISIVE QUESTIONS FOR CONSIDERATION IN THIS CASE. RATHER, THE CASE TURNS UPON THE QUESTION OF WHETHER SCHMIDT'S BID IS CONSIDERED NONRESPONSIVE TO THE INVITATION IN VIEW OF THE FACT THAT IT FAILED TO ENCLOSE THE BALANCE OF THE BID FORM IN ITS ORIGINAL SUBMITTAL.

WHILE IT MAY BE TRUE THAT SCHMIDT INTENDED TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, AS EVIDENCED BY ITS SUBMITTAL OF THE BID PRICE SCHEDULE AND BID BOND, THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. IN THE PRESENT SITUATION, A BIDDER COULD TAKE THE POSITION THAT HE WAS BOUND ONLY BY THE PROVISIONS WHICH APPEARED ON THE FACE OF THE BID PRICE SCHEDULE--- A CONTENTION WHICH IF MADE WOULD APPEAR TO BE LEGALLY SOUND. BY INADVERTENTLY FAILING TO SUBMIT ITS BID FORM, SCHMIDT WOULD NOT BE OBLIGATED TO PERFORM IN STRICT ACCORDANCE WITH THE INVITATION FOR BIDS ANY OF THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS FOR THE AMOUNTS SET FORTH IN THE BID PRICE SCHEDULE IT HAD ORIGINALLY SUBMITTED. IN OTHER WORDS, A BID SUBMITTED WITHOUT THE BID FORM WHICH CONTAINED SUBSTANTIVE PROVISIONS CONCERNING THE SPECIFICATIONS AND CONTRACTOR OBLIGATIONS IS A NONRESPONSIVE BID PROPERLY FOR REJECTION. SEE 42 COMP. GEN. 502; B-154626 DATED JULY 17, 1964.

ACCORDINGLY, WE ARE OF THE OPINION THAT THE LOW BID OF SCHMIDT WAS NONRESPONSIVE AND SHOULD PROPERLY BE REJECTED.