B-159461, DEC. 2, 1966

B-159461, DEC. 2, 1966

TO GILINISKY, STILLMAN AND MISHKIN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1966, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF THE R. C. ALLEN AIRCRAFT INSTRUMENT DIVISION OF R. C. ALLEN BUSINESS MACHINES, INC., AGAINST THE CANCELLATION OF INVITATION NO. IFB 33-657-66-286 AND THE AWARD MADE UNDER INVITATION NO. IFB 33-657-66-351 BY THE AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE RECORD SHOWS THAT UNDER THE FIRST CITED INVITATION, ISSUED MARCH 17, 1966, BIDS WERE REQUESTED FOR FURNISHING MC-1 GYROSCOPES IN THREE DIFFERENT INCREMENTS: 1,470 UNITS, 1,554 UNITS AND 1,584 UNITS. THE INVITATION RESERVED TO THE GOVERNMENT THE RIGHT TO MAKE AN AWARD FOR EITHER OF THESE QUANTITIES ACCORDING TO A DELIVERY SCHEDULE AS FOLLOWS:

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

THEREAFTER, INVITATION AMENDMENT NO. 1 DATED MARCH 28, 1966, WAS ISSUED ADDING TWO ADDITIONAL INCREMENTS, 1,984 UNITS AND 2,155 UNITS, AND PROVIDING A NEW DELIVERY SCHEDULE INCREASING THE NUMBER OF UNITS TO BE DELIVERED UNDER THE FIRST THREE INCREMENTS AND SPECIFYING THE DELIVERY SCHEDULE FOR THE LAST TWO INCREMENTS. THE DELIVERY SCHEDULE IN THE AMENDMENT WAS AS FOLLOWS:

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

THE AMENDMENT WAS PRECEDED BY A TELEFAX TO BIDDERS ON MARCH 25, 1966, IN PERTINENT PART AS FOLLOWS:

"* * * DATE AND HOUR FOR OPENING INVITATION FOR BIDS 33-657-66-286 CHANGED FROM 3 PM EST, 29 MARCH 1966 TO 3 PM EST, 5 APRIL 1966. REQUIREMENTS INCREASED BY 571 UNITS. FORMAL AMENDMENT FOLLOWS.'

BY LETTER OF APRIL 2, 1966, ACCOMPANYING THE BID UNDER THE INVITATION, R. C. ALLEN STATED IN PERTINENT PART:

"OUR QUOTATION INCLUDES THE INCREASED REQUIREMENTS OF 571 UNITS AS REQUESTED IN A WIRE FROM ASKI ON MARCH 28, 1966. WE WISH TO ADVISE, HOWEVER, THAT NO FORMAL AMENDMENT HAS BEEN RECEIVED TO DATE.'

IN THE BID ITSELF THE BIDDER HAD TYPEWRITTEN THE UNITS FOR INCREMENTS 4 AND 5 AND THE PRICES THEREFOR.

THE CONTRACTING OFFICER DETERMINED THAT THE BID OF R. C. ALLEN CONTAINED A MAJOR DEVIATION WITHIN THE MEANING OF ASPR 2-405 IN THAT THERE WAS NO ACKNOWLEDGMENT OF THE DELIVERY SCHEDULE PROVIDED IN THE AMENDMENT AND HE CONSIDERED THE BID TO BE NONRESPONSIVE. THE ONLY OTHER BIDDER, LEAR SIEGLER, INC., WAS DETERMINED TO BE RESPONSIVE, BUT THE ADMINISTRATIVE OFFICE DESIRED TO HAVE TESTING OF THE LEAR SIEGLER PRODUCT OFFERED AND LEAR SIEGLER HAD NOT BID ON THAT BASIS. THEREFORE, IT WAS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THE INVITATION PURSUANT TO ASPR 2-404.1 (B) (II) WHICH PROVIDES FOR CANCELLATION BECAUSE OF SPECIFICATION CHANGES.

HOWEVER, THE ISSUE OF CANCELLATION IS ACADEMIC INSOFAR AS R. C. ALLEN IS CONCERNED SINCE IT COULD NOT HAVE RECEIVED AN AWARD IN VIEW OF THE MATERIAL DEVIATION IN ITS BID. WHILE YOU CONTEND THAT R. C. ALLEN'S ACKNOWLEDGMENT OF THE TELEFAX SUFFICED TO MAKE ITS BID RESPONSIVE TO AMENDMENT NO. 1, THE ACKNOWLEDGMENT ONLY RECOGNIZED THE INCREASED INCREMENTS. IT WAS SILENT WITH RESPECT TO THE DELIVERY OF THE NEW INCREMENTS. IN FACT, THE ACKNOWLEDGMENT STATED THAT THE AMENDMENT HAD NOT BEEN RECEIVED AND THE AMENDMENT WAS THE ONLY DOCUMENT CONTAINING THE NEW DELIVERY SCHEDULE. THUS, THE ONLY DELIVERY SCHEDULE OF R. C. ALLEN HAD AGREED TO CONFORM TO WAS THE SCHEDULE IN THE ORIGINAL INVITATION AND IT WOULD NOT BE BOUND TO THE NEW SCHEDULE IF ITS BID WERE ACCEPTED. ITS BID WAS THEREFORE NONRESPONSIVE. IN THAT CONNECTION, OUR OFFICE HELD IN 34 COMP. GEN. 24 THAT THE FAILURE OF A BID TO CONFORM TO THE REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS A MATERIAL DEVIATION WHICH CANNOT BE WAIVED AND WHICH REQUIRES REJECTION OF THE BID. MOREOVER, THE ADMINISTRATIVE RECORD CONTAINS A CERTIFICATION THAT THE AMENDMENT WAS MAILED TO R. C. ALLEN, AND WHILE THE GOVERNMENT MAKES EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF INVITATIONS AND AMENDMENTS, FAILURE OF SUCH RECEPTION IN A PARTICULAR CASE DOES NOT WARRANT CONSIDERATION OF A BID IN CONTRAVENTION OF THE WELL ESTABLISHED GENERAL RULE THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT PRIOR TO BID OPENING RENDERS A BID NONRESPONSIVE WHERE SUCH AMENDMENT PRODUCES A MATERIAL CHANGE. 42 COMP. GEN. 490; 37 ID. 785; B- 154855, SEPTEMBER 21, 1964; B-153271, JANUARY 21, 1964. TO PERMIT A BIDDER TO PERFORM IN ACCORDANCE WITH THE INVITATION, WITHOUT REFERENCE TO THE REQUIREMENTS OF THE UNACKNOWLEDGED AMENDMENT, WOULD BE CONTRARY TO THE STATUTES GOVERNING ADVERTISED PROCUREMENTS. UNITED STATES V. ELLICOTT, 223 U.S. 524. ON THE OTHER HAND, TO PERMIT A BIDDER TO AMEND HIS BID AFTER OPENING TO CONFORM TO THE SPECIFICATIONS, AS MATERIALLY MODIFIED BY THE AMENDMENT, WOULD ALSO CONTRAVENE THE COMPETITIVE BIDDING STATUTES. COMP. GEN. 447, 448.

SINCE ITS BID COULD NOT HAVE BEEN ACCEPTED IN ANY EVENT, R. C. ALLEN WAS NOT PREJUDICED BY THE CANCELLATION AND READVERTISEMENT. IF ANYTHING, THAT ACTION WAS BENEFICIAL TO R. C. ALLEN IN THAT IT PROVIDED IT WITH A SECOND OPPORTUNITY TO COMPETE FOR THE PROCUREMENT.

THE PROCUREMENT WAS READVERTISED UNDER INVITATION NO. IFB 33-657-66 351. LEAR SIEGLER WAS THE LOW BIDDER. AS IN THE PRIOR INSTANCE, AN AMENDMENT TO THE INVITATION WAS ISSUED. THIS AMENDMENT EXTENDED THE BID OPENING DATE AND PROVIDED THAT QUALIFIED PRODUCTS LIST NO. 25591-4 APPEARING IN THE INVITATION WAS CHANGED TO LIST NO. 25591-6. PROSPECTIVE BIDDERS WERE ALSO ADVISED OF THIS CHANGE BY TELEFAX.

IN THE LETTER ACCOMPANYING ITS BID, LEAR SIEGLER ADVISED:

"RECEIPT OF AMENDMENT ONE BY TWX NUMBER R-232100Z DATED MAY 24, 1966, FROM THE CONTRACTUAL INSTRUMENTS DIVISION, IS ACKNOWLEDGED AND THE CONTENTS RELATING TO CHANGE OF OPENING DATE AND QPL NUMBER NOTED. THE FORMAL AMENDMENT WAS NOT RECEIVED BY THIS CONTRACTOR PRIOR TO THIS OPENING E.'

SINCE LEAR SIEGLER ACKNOWLEDGED THE CHANGES APPEARING IN THE AMENDMENT, THE CONTRACTING OFFICE TREATED THE FAILURE TO RETURN THE AMENDMENT AS A MINOR DEVIATION WHICH COULD BE WAIVED.

THE QUALIFIED PRODUCTS CLAUSE IN THE INVITATION PROVIDED THAT AWARDS FOR ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH ITEMS HAVE BEEN TESTED AND ARE QUALIFIED FOR INCLUSION IN A QUALIFIED PRODUCTS LIST IDENTIFIED IN THE INVITATION. THE MODEL WHICH LEAR SIEGLER DESIGNATED IN ITS BID APPEARS ON BOTH QUALIFIED PRODUCTS LISTS, THE ONE IN THE INVITATION AND THE ONE IN THE AMENDMENT, THE LATTER BEING A LATER ISSUED WITHIN THE SAME SERIES. THEREFORE, REGARDLESS OF THE LIST REFERRED TO, THE FACT REMAINS THAT THE MODEL HAS RECEIVED THE NECESSARY APPROVAL REQUIRED BY THE QUALIFIED PRODUCTS CLAUSE IN THE INVITATION. IN THE CIRCUMSTANCES, THE FAILURE TO RETURN THE AMENDMENT WAS A MATTER OF FORM, AND NOT OF SUBSTANCE, AND THE OMISSION WAS PROPERLY WAIVED.