B-155411, JAN. 8, 1965, 44 COMP. GEN. 386

B-155411, JAN. 8, 1965, 44 COMP. GEN. 386

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA INFORMATION - CANCELLATION OF ADDENDA UPON CANCELLATION OF THE ADDITIVE WORK REQUIRED BY AN AMENDMENT TO AN INVITATION, THE CONTRACT AWARD TO BE LIMITED TO THE WORK COVERED BY THE BASE BID, THE FACT THAT THE LOW BIDDER ON THE BASIC WORK FAILED TO QUOTE A PRICE ON THE ADDITIONAL WORK THAT HAD BEEN CONTEMPLATED, ALTHOUGH ACKNOWLEDGING THE ADDENDA, DOES NOT REQUIRE THE CONTRACT TO BE AWARDED TO THE SECOND LOW BIDDER ON THE BASIS OF HAVING QUOTED A PRICE ON THE ADDITIVE, THE GOVERNMENT IN CANCELING THE UNNECESSARY ADDITIONAL WORK HAVING EXERCISED ITS RIGHT UNDER THE INVITATION TO WAIVE A BID INFORMALITY AND TO ACCEPT ANY ITEM OR COMBINATION OF ITEMS, THE PRICE OF THE ADDITIVE BECAME IMMATERIAL AND UNNECESSARY IN EVALUATING THE BASE BID AND ITS OMISSION BY THE LOW BIDDER AN INFORMALITY TO BE WAIVED AS NOT AFFECTING PRICE, QUANTITY, OR QUALITY AND AS NOT RESULTING IN UNFAIR COMPETITION BY PERMITTING OTHER THAN THE METHOD OF CONTRACT PERFORMANCE CONTEMPLATED, OR BY EVALUATING THE BIDS ON OTHER THAN A BASIS COMMON TO ALL BIDDERS.

TO THE I. ALPER COMPANY, JANUARY 8, 1965:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 17, 1964, AND SUPPLEMENTAL LETTER OF OCTOBER 20, 1964, PROTESTING AGAINST THE AWARD OF ANY CONTRACT TO DEE CEE ROOFING COMPANY UNDER INVITATION NO. AMC/A/ 36-038 -65-91 (SI) ISSUED BY THE FRANKFORD ARSENAL.

UNDER THE SUBJECT INVITATION, ISSUED AUGUST 21, 1964, LUMP-SUM BIDS, TO BE OPENED SEPTEMBER 8, 1964, WERE INVITED FOR FURNISHING THE LABOR, MATERIAL AND EQUIPMENT TO REMOVE AND REPLACE THE EXISTING ROOF ON BUILDING NO. 58 AT FRANKFORD ARSENAL IN STRICT ACCORDANCE WITH FRANKFORD ARSENAL SPECIFICATION FAPD-2419, REV. 1, DATED JULY 20, 1964, AND DRAWING NO. FC- 7695, DATED JULY 20, 1964. THE WORK IS TO BE COMPLETED WITHIN 90 CALENDAR DAYS AFTER NOTICE TO PROCEED, AND THE PROCUREMENT WAS TOTALLY RESTRICTED TO SMALL BUSINESS.

AMENDMENT NO. 1 TO THE INVITATION, ISSUED SEPTEMBER 3, 1964, PROVIDED THAT DRAWING NO. FC-7695 WAS THEREBY REPLACED BY DRAWING NO. FC-7695, REV. 1, DATED AUGUST 31, 1964, AND AMENDMENT NO. 2, ISSUED SEPTEMBER 4,1964, EXTENDED THE BID OPENING DATE TO SEPTEMBER 25, 1964.

AMENDMENT NO. 3 TO THE INVITATION, ISSUED SEPTEMBER 14, 1964, CLARIFIED AND MADE CERTAIN CHANGES IN THE REQUIREMENTS OF THE BASIC WORK, AND FURTHER PROVIDED IN MATERIAL PART AS FOLLOWS:

3. A SEPARATE QUOTATION ON THE FOLLOWING ITEM IS TO ACCOMPANY THE BASE BID.

A. THE REMOVAL OF THE EXISTING LOWER MONITOR PANELS ON THE NORTH SIDE OF BOTH MONITORS LOCATED BETWEEN COLUMN NOS. 01 AND 011 AND REPLACE THEM WITH NEW 16 OZ COPPER PANELS AS SHOWN ON DRAWING FC-7695 REV. 1, DATED 31 AUGUST 1964 AND SET FORTH IN SPECIFICATION FAPD-2419, DATED 20 JULY 1964.

NOTES:

IN ADDITION TO OTHER FACTORS, BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MULTIPLE AWARDS. FOR THE PURPOSE OF MAKING THIS EVALUATION, IT WILL BE ASSUMED THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST TO THE GOVERNMENT FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER THIS INVITATION, AND INDIVIDUAL AWARDS WILL BE FOR THE ITEM AND COMBINATION OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT, INCLUDING SUCH ADMINISTRATIVE COSTS:

IN YOUR BID DATED SEPTEMBER 25, 1964, YOU OFFERED TO PERFORM THE BASIC WORK FOR THE PRICE OF $36,300, AND IN REGARD TO THE ADDITIONAL WORK ON WHICH BIDDERS HAD BEEN REQUESTED TO QUOTE, AS DESCRIBED IN AMENDMENT 3, SUPRA, YOU STATED:

ALT. NO. 1 REPLACE LOWER COPPER PANELS ON NORTH SIDE OF TWO MONITORS BETWEEN COLUMN NOS. 01 AND 011.

ADD--- ONE THOUSAND SIX HUNDRED DOLLARS AND 00/100 ($1,600.00)

NONE OF THE OTHER FOUR CONCERNS SUBMITTING BIDS IN RESPONSE TO THE INVITATION QUOTED A PRICE FOR PERFORMING THE ADDITIONAL WORK DESCRIBED IN AMENDMENT 3, ALTHOUGH THEY ALL ACKNOWLEDGED RECEIPT OF THE AMENDMENT. THE AMOUNTS QUOTED IN THEIR BIDS FOR THE BASIC WORK RANGED FROM $34,740 (THE AMOUNT OF THE BID SUBMITTED BY DEE CEE ROOFING COMPANY) TO $47,542.

SUBSEQUENT TO THE BID OPENING, A REINVESTIGATION WAS MADE BY THE FRANKFORD ARSENAL PLANT ENGINEERING DIVISION AS TO THE NECESSITY OF PERFORMING THE WORK FOR WHICH A SEPARATE QUOTATION WAS REQUESTED BY AMENDMENT 3. SUCH REINVESTIGATION DISCLOSED THAT THE EXISTING MONITOR PANELS (COPPER) ON THE NORTH SIDE OF BOTH MONITORS LOCATED BETWEEN COLUMN NOS. 01 AND 011 DID NOT NEED TO BE REPLACED. TESTS ON THESE COPPER PANELS DISCLOSED THAT THEY WERE DISCOLORED BUT WERE IN GOOD CONDITION, WITH A LIFE EXPECTANCY EQUIVALENT TO THE NEW WORK REQUIRED BY THE BASE BID. ACCORDINGLY, THE WORK COVERED BY PARAGRAPH 3 OF AMENDMENT 3 WAS CANCELED, AND IT WAS DETERMINED THAT AN AWARD WOULD BE MADE ONLY FOR THE WORK NEEDED --- THE WORK COVERED BY THE BASE BID. IN VIEW OF YOUR PROTEST, HOWEVER, A CONTEMPLATED AWARD OF THE CONTRACT TO DEE CEE ROOFING COMPANY (HEREAFTER REFERRED TO AS D-C) HAS BEEN HELD UP PENDING OUR ACTION ON THE MERITS OF YOUR PROTEST.

IN YOUR LETTER OF OCTOBER 20, 1964, YOU CONTEND THAT D-C'S BID MUST BE CONSIDERED AS NONRESPONSIVE BECAUSE THE INVITATION, AS AMENDED BY AMENDMENT 3, PROVIDED THAT A SEPARATE QUOTATION ON THE ITEM OF WORK DESCRIBED IN PARAGRAPH 3 OF THE AMENDMENT WAS "TO ACCOMPANY THE BASE BID.' IN THIS CONNECTION, YOU DRAW ATTENTION TO PARAGRAPH 5 (B) OF INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT), STANDARD FORM 22, JANUARY 1961 EDITION, ATTACHED TO THE INVITATION, WHICH STATES THAT THE BID FORM "MAY PROVIDE FOR SUBMISSION OF A PRICE OR PRICES FOR ONE OR MORE ITEMS, WHICH MAY BE LUMP SUM BIDS, ALTERNATE PRICES, SCHEDULED ITEMS RESULTING IN A BID ON A UNIT OF CONSTRUCTION OR A COMBINATION THEREOF, ETC., " AND THAT:

* * * WHERE THE BID FORM EXPLICITLY REQUIRES THAT THE BIDDER BID ON ALL ITEMS, FAILURE TO DO SO WILL DISQUALIFY THE BID * * *

WHILE THE ABOVE-QUOTED PROVISIONS ARE CONTAINED IN PARAGRAPH 5 (B) OF INSTRUCTIONS TO BIDDERS, BIDDERS WERE ADVISED IN PARAGRAPH 10 OF THE INSTRUCTIONS THAT THE GOVERNMENT RESERVED THE RIGHT, WHEN IN ITS INTEREST, TO WAIVE ANY INFORMALITY IN BIDS RECEIVED, AND "MAY ACCEPT ANY ITEM OR COMBINATION OF ITEMS OF A BID, UNLESS PRECLUDED BY THE INVITATION FOR BIDS OR THE BIDDER INCLUDES IN HIS BID A RESTRICTIVE LIMITATION.' NEITHER THE INVITATION, AS AMENDED BY AMENDMENT 3, NOR YOUR BID, CONTAINED ANY PRECLUSIVE OR RESTRICTIVE LANGUAGE IN THIS RESPECT. AS INDICATED ABOVE, IT DID PROVIDE THAT $50 WOULD BE THE EVALUATION FACTOR FOR ADMINISTRATIVE COST TO THE GOVERNMENT FOR MAKING MULTIPLE AWARDS, AND THAT "INDIVIDUAL AWARDS WILL BE FOR THE ITEM AND COMBINATION OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT * * *"

UNDER THE TERMS OF THE INVITATION, THE GOVERNMENT WAS THUS GIVEN THE RIGHT TO MAKE AN AWARD FOR EITHER OR BOTH OF THE ITEMS OF WORK HERE INVOLVED. THE GOVERNMENT HAS DETERMINED THAT THE ADDITIVE WORK IS UNNECESSARY AND, HENCE, THE PRICE QUOTED IN YOUR BID THEREFOR, AS WELL AS D-C'S FAILURE TO QUOTE A PRICE THEREFOR IN ITS BID, HAVE AUTOMATICALLY BEEN ELIMINATED AS FACTORS TO BE CONSIDERED IN EVALUATING THE TWO BIDS FOR PURPOSES OF AWARD, THE ONLY QUESTION BEING WHETHER D C'S OMISSION IN THIS RESPECT CONSTITUTES SUCH A MATERIAL DEVIATION FROM THE BIDDING CONDITIONS AS TO REQUIRE REJECTION OF ITS BID.

IN B-148081, MARCH 5, 1962 (UNPUBLISHED), INVOLVING AN INVITATION CONTAINING IDENTICAL PROVISIONS TO THOSE HERE INVOLVED, AND A FACTUAL SITUATION WHICH WAS ALSO IDENTICAL, WE ADVISED THE PERMANENT BUILDERS COMPANY, BLADENSBURG, MARYLAND, THAT ITS PROTEST (MADE ON THE IDENTICAL GROUNDS URGED BY YOU IN SUPPORT OF YOUR PROTEST) WAS DENIED, STATING IN MATERIAL PART:

* * * IN THIS CASE THE CONTRACTING OFFICER HAS STATED THAT THE GOVERNMENT HAS DECIDED NOT TO MAKE AN AWARD THAT WILL INCLUDE THE ADDITIVE ALTERNATE. THEREFORE, FOR PURPOSES OF AWARD, THE PRICE FOR THE ADDITIVE ALTERNATE WOULD BE IMMATERIAL AND UNNECESSARY TO THE EVALUATION OF BIDS AND ITS OMISSION ALSO CAN BE CONSIDERED AN INFORMALITY THAT MAY BE WAIVED. IN B-143271, OCTOBER 7, 1960, THERE WAS CONSIDERED AN INFORMALITY THAT MAY BE WAIVED. IN B-143271, OCTOBER 7, 1960, THERE WAS CONSIDERED A CASE IN WHICH THE INSTRUCTIONS TO BIDDERS STATED THAT THE BIDS "MUST BE SUBMITTED ON ALL ITEMS" AND THAT "BIDS NOT SO SUBMITTED WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.' NEVERTHELESS, IT WAS CONCLUDED THAT IT WAS IMPROPER TO REJECT THE BID OF THE LOW BIDDER FOR FAILING TO BID ON AN ITEM THAT WAS NOT PART OF THE EVALUATION FOR BIDS, SINCE THE ITEM DID NOT AFFECT THE SUBSTANCE OF THE BID.

THE DECISION OF OCTOBER 7, 1960, REFERRED TO IN THE ABOVE QUOTE, WAS RENDERED TO THE SECRETARY OF THE AIR FORCE. IN SUSTAINING THIS DECISION IN A DECISION DATED DECEMBER 2, 1960, 40 COMP. GEN. 321, TO TECHNER, RUBIN AND SHAPIRO, WHO, AS ATTORNEYS FOR THE CONTRACTOR STANDING TO LOSE THE CONTRACT AS A RESULT OF THE DECISION, HAD REQUESTED RECONSIDERATION THEREOF, WE STATED:

WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.