B-157467, DEC. 21, 1965

B-157467, DEC. 21, 1965

TO VICTORY ELECTRONICS:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 11, 1965, AND AUGUST 12, 1965, WITH ENCLOSURES, PROTESTING AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. AMC/E/-36-039-65-435-3, ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE ABOVE INVITATION WAS ISSUED MARCH 1, 1965, AND THE OPENING DATE WAS MARCH 31, 1965. BIDS WERE REQUESTED UNDER ITEM 1 FOR FURNISHING 730 RESISTANCE BRIDGES IN ACCORDANCE WITH CITED SPECIFICATIONS AND DRAWINGS AND INCLUDING CERTAIN SUB-ITEMS. ITEM 4 REQUESTED A QUOTATION OF THE INCREASE IN UNIT COST TO PACK 653 OF THE BRIDGES UNDER ITEM 1 IN ACCORDANCE WITH MILITARY REQUIREMENTS CITED IN THE INVITATION.

MODIFICATION NO. 1 WAS DATED MARCH 8, 1965, AND DIRECTED THAT THE QUANTITY OF ITEM 1 BE INCREASED FROM 730 TO 755 AND THAT THE QUANTITY OF ITEM 4 BE INCREASED FROM 653 TO 678. THE MODIFICATION ALSO ADDED A PROVISION THAT 22 OF THE UNITS UNDER ITEM 1 WERE BEING PURCHASED IN IMPLEMENTATION OF THE MILITARY ASSISTANCE PROGRAM AND REQUIRED THE BIDDER TO CERTIFY THAT THESE 22 UNITS WOULD BE UNITED STATES END PRODUCTS AS PROVIDED IN SECTION 6-703.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

SEVENTY FIRMS WERE SOLICITED AND TEN BIDS WERE RECEIVED. THE LOW BID OF PAX ELECTRONICS, INC., WAS FORWARDED TO THE CONTRACTOR EVALUATION BOARD (CEB) ON APRIL 1, 1965, FOR A DETERMINATION AS TO THE RESPONSIBILITY OF THE COMPANY. THEREAFTER A REPRESENTATIVE OF PAX ALLEGED THAT A MISTAKE HAD BEEN MADE IN ITS BID AND STATED THAT EVIDENCE WOULD BE SUBMITTED TO SUPPORT SAME. ON APRIL 26, 1965, YOUR BID, WHICH WAS SECOND LOW, WAS SUBMITTED TO THE CEB AND ON JUNE 5, 1965, THE THIRD LOW BID OF WINSLOW TELE-TRONICS, INC., WAS FORWARDED TO THE BOARD, UPON RECEIPT OF VERBAL INFORMATION THAT YOU WOULD NOT RECEIVE A CEB APPROVAL. THE NEGATIVE REPORT FROM THE BOARD ON YOUR COMPANY WAS RECEIVED ON JUNE 8, 1965. WAS AT THIS TIME THAT IT WAS FIRST DISCOVERED THAT YOU HAD FAILED TO SUBMIT MODIFICATION NO. 1 TO THE INVITATION. THE CONTRACTING OFFICER THEREFORE REQUESTED ADVICE FROM THE OFFICE OF THE GENERAL COUNSEL, U.S. ARMY ELECTRONICS COMMAND, AS TO WHETHER YOUR BID COULD BE CONSIDERED AS RESPONSIVE AND RECEIVED A NEGATIVE OPINION DATED JUNE 21, 1965. ON JUNE 30, 1965, PAX ELECTRONICS WAS PERMITTED TO WITHDRAW ITS ALLEGEDLY ERRONEOUS BID.

AFTER EXTENDED CONSIDERATION AS TO WHETHER PREPRODUCTION SAMPLES COULD BE WAIVED, AWARD WAS MADE TO WINSLOW TELE-TRONICS, INC., ON JULY 30, 1965, AND YOU WERE NOTIFIED BY LETTER OF THE SAME DATE FROM THE CONTRACTING OFFICER THAT YOUR BID WAS "REJECTED AS NONRESPONSIVE DUE TO YOUR FAILURE TO EITHER ACKNOWLEDGE RECEIPT OF OR RETURN AMENDMENT NO. 1 TO THE INVITATION, SAID AMENDMENT BEING OF MATERIAL SIGNIFICANCE.'

YOU HAVE PROTESTED THE REJECTION OF YOUR BID ON THE GROUNDS THAT YOU DID SUBMIT THE AMENDMENT WITH YOUR ORIGINAL BID; THAT YOU FEEL FULLY CAPABLE OF PERFORMING IN ACCORDANCE WITH ALL REQUIREMENTS OF THE INVITATION; THAT THE PROVISION IN THE INVITATION FOR A 25 PERCENT QUANTITY INCREASE WOULD COVER THE INCREASE PROVIDED BY THE AMENDMENT; THAT THE FAILURE, IF ANY, TO RETURN MODIFICATION NO. 1 COULD HAVE BEEN WAIVED BY THE CONTRACTING OFFICER AS A MINOR INFORMALITY OR IRREGULARITY IN THE BID; THAT YOU WERE PERIODICALLY IN CONTACT WITH THE PROCUREMENT DISTRICT, INCLUDING THE REQUESTS FOR AND GRANTING OF EXTENSIONS IN THE PERIOD FOR ACCEPTANCE OF YOUR BID, AND THAT THERE WOULD THEREFORE APPEAR TO BE NO JUSTIFICATION FOR THE DELAY IN NOTIFYING YOU OF YOUR ALLEGED FAILURE TO ACKNOWLEDGE OR RETURN THE AMENDMENT.

WITH REFERENCE TO YOUR CONTENTION THAT YOU SUBMITTED THE AMENDMENT WITH YOUR ORIGINAL BID, IT SHOULD BE NOTED THAT ALL BIDDERS WERE DIRECTED BY THE AMENDMENT TO CHANGE THE QUANTITIES OF ITEMS 1 AND 4 BY AN INCREASE OF 25 UNITS. THE FACT THAT THE CONTRACTING OFFICE HAS NO RECORD OF RECEIPT OF THE AMENDMENT WITH YOUR BID, TOGETHER WITH THE FACT THAT YOUR BID SHOWED NO CHANGE IN THE QUANTITIES, NO CHANGE IN UNIT PRICES, AND NO CHANGE IN THE TOTAL PRICES BID TO INDICATE THAT THEY WERE BASED ON THE INCREASED QUANTITIES, WOULD APPEAR TO REFUTE YOUR CONTENTION.

THE QUESTION OF YOUR CAPABILITY TO PERFORM PROPERLY UNDER THE CONTRACT IS PERTINENT ONLY IF IT IS DETERMINED THAT YOUR BID WAS RESPONSIVE. IN THIS CONNECTION, THE GENERAL RULE IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, IT GOES TO THE SUBSTANCE OF THE BID AND FAILURE OF THE BIDDER TO ACKNOWLEDGE THE AMENDMENT IN THE PRESCRIBED MANNER CANNOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY, BUT REQUIRES REJECTION OF THE BID AS NONRESPONSIVE. SEE 30 COMP. GEN. 179; 33 ID. 508; 37 ID. 785; AND 40 ID. 126. SINCE THE AMENDMENT CLEARLY AFFECTED QUANTITY AND TOTAL PRICES AND COULD HAVE AFFECTED UNIT PRICES, THE FAILURE TO ACKNOWLEDGE IT COULD NOT BE WAIVED.

WITH REFERENCE TO YOUR CONTENTION THAT THE PROVISION IN THE INVITATION FOR A PERMISSIVE QUANTITY INCREASE OF 25 PERCENT OF THE ORIGINAL REQUIREMENTS MADE IT POSSIBLE TO MAKE AN AWARD WELL ABOVE THE 755 TOTAL REQUIREMENTS FOR ITEM 1, YOU ARE ADVISED THAT THE 25 PERCENT OPTION APPLIES TO THE TOTAL QUANTITY, AS CHANGED BY THE MODIFICATION, AND NOT JUST TO THE ORIGINAL QUANTITY. IT IS THEREFORE APPARENT THAT UNDER YOUR BID THE GOVERNMENT COULD ORDER ONLY 730 UNITS, PLUS 25 PERCENT ADDITIONAL, WHEREAS 755 UNITS, PLUS 25 PERCENT, COULD BE ORDERED UNDER A BID WHICH INCLUDED MODIFICATION NO. 1.

AS TO THE DELAY IN NOTIFYING YOU OF YOUR APPARENT FAILURE TO ACKNOWLEDGE OR RETURN THE MODIFICATION, THE ARMY HAS ADVISED, AS INDICATED ABOVE, THAT THIS DEFICIENCY WAS FIRST NOTED WHEN YOUR BID WAS BEING CONSIDERED BY THE CONTRACTOR EVALUATION BOARD IN JUNE 1965. THE INITIAL OVERSIGHT IS REGRETTABLE. HOWEVER, SECTION 2-408.1 OF ASPR REQUIRES THE PURCHASING OFFICE TO NOTIFY UNSUCCESSFUL BIDDERS OF THE FACT THAT THEIR BIDS WERE NOT ACCEPTED AND, IF REQUESTED, TO PROVIDE THE UNSUCCESSFUL BIDDER WITH THE NAME AND ADDRESS OF THE SUCCESSFUL BIDDER, TOGETHER WITH THE CONTRACT PRICE. SINCE THIS INFORMATION ON THE SUCCESSFUL BIDDER WAS NOT AVAILABLE FOR DISSEMINATION TO OTHER INTERESTED BIDDERS UNTIL AWARD WAS MADE, THE PURCHASING OFFICE PRESUMABLY COORDINATED NOTICE TO UNSUCCESSFUL BIDDERS WITH THE AVAILABILITY OF THIS INFORMATION AND SENT SUCH NOTICES PROMPTLY ON JULY 30, 1965, THE DATE OF AWARD AND THE DATE OF THE CONTRACTING OFFICER'S LETTER TO YOU.

FOR THE REASONS STATED, WE ARE UNABLE TO CONCLUDE THAT YOUR ACKNOWLEDGEMENT OR RETURN OF MODIFICATION NO. 1 HAS BEEN ESTABLISHED, OR THAT THIS DEFICIENCY MAY BE WAIVED. WE WOULD THEREFORE NOT BE JUSTIFIED IN QUESTIONING THE REJECTION OF YOUR BID AS NONRESPONSIVE AND YOUR PROTEST MUST BE DENIED.