B-161268, JUL 14, 1967

B-161268, JUL 14, 1967

DECISION TO LOW BIDDER FOR ELEVATOR CONVERSION WORK FOR GSA HOLDING THAT ON BASIS THAT BIDDER FAILED TO ACKNOWLEDGE AMENDMENT CONTAINING INCREASE IN WAGE RATE REJECTION OF BID AS NONRESPONSIVE WAS REQUIRED. WHEN THERE IS CONFLICT BETWEEN CONTENTIONS OF UNSUCCESSFUL BIDDER AND REPORT OF PROCUREMENT OFFICE, ACCEPTANCE OF ADMINISTRATIVE REPORT IN ABSENCE OF CONTRARY EVIDENCE IS REQUIRED.

LARDNER ELEVATOR COMPANY, ATTENTION:

MR. RICHARD C. LARDNER PRESIDENT:

REFERENCE IS MADE TO COPIES OF YOUR LETTERS OF APRIL 11, MAY 2 AND JUNE 1, 1967, CONCERNING YOUR PROTEST AGAINST AWARD OF CONTRACT TO ANY OTHER FIRM UNDER GENERAL SERVICES ADMINISTRATION (GSA) INVITATION FOR BIDS NO. GS-05BC-6730.

THE SUBJECT INVITATION, DATED FEBRUARY 14, 1967, WAS ISSUED BY GSA, PUBLIC BUILDINGS SERVICE, REGION 5, CHICAGO, ILLINOIS, AND REQUESTED BIDS TO BE OPENED ON MARCH 14, 1967, FOR ELEVATOR CONVERSION AT THE FEDERAL BUILDING, IMMIGRATION AND NATURALIZATION SERVICE, DETROIT, MICHIGAN. AN INTEGRAL PART OF THE INVITATION, SECTION 3 OF THE SPECIFICATIONS CONTAINED WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR NO. AG- 4,637 DATED DECEMBER 31, 1966, SPECIFYING THE PREVAILING RATES OF WAGES APPLICABLE TO THE WORK UNDER THE PROPOSED CONTRACT. ON FEBRUARY 10, 1967, THE DEPARTMENT OF LABOR ISSUED MODIFICATION NO. 1 TO AG-4,637 WHICH INCREASED PREVAILING WAGE OR FRINGE BENEFIT RATES FOR BRICKLAYERS AND CEMENT MASONS. THEREAFTER, ON MARCH 6, 1967, THE PROCURING AGENCY ISSUED AMENDMENT NO. 1 TO THE SUBJECT INVITATION WHICH EXTENDED THE BID OPENING DATE TO MARCH 31, 1967, AND INCLUDED A COPY OF MODIFICATION NO. 1 OF THE WAGE RATE DECISION NO. AG-4,637 AS PART OF SECTION 3 OF THE SPECIFICATIONS. IN THIS CONNECTION, AMENDMENT NO. 1 CONTAINED THE FOLLOWING ADMONITIONS DIRECTED TO ALL BIDDERS:

"IMPORTANT - BIDDER MUST ACKNOWLEDGE THE RECEIPT OF THIS AMENDMENT ON THE BID FORM, GIVING THE NUMBER AND DATE. FAILURE TO DO SO MAY BE GROUNDS FOR REJECTION OF THE BID.

"PLEASE NOTE: YOUR BID MAY NOT RECEIVE CONSIDERATION IF THIS AMENDMENT HAS NOT BEEN ACKNOWLEDGED ON THE BID FORM OR BY LETTER RECEIVED IN THE ISSUING OFFICE PRIOR TO BID OPENING TIME."

THE RECORD SHOWS THAT BIDS WERE OPENED ON MARCH 31, 1967, AND FOUR BIDS WERE RECEIVED. LARDNER ELEVATOR COMPANY SUBMITTED THE LOW BID OF $21,192, AND THE DETROIT ELEVATOR COMPANY SUBMITTED THE NEXT LOW BID OF $23,500. THE PROCURING OFFICE REPORTS THAT YOUR FIRM DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 ON THE BID FORM NOR WAS ANY LETTER RECEIVED FROM YOUR FIRM, PRIOR TO BID OPENING, ACKNOWLEDGING RECEIPT OF THE AMENDMENT IN QUESTION. THEREFORE, THE CONTRACTING OFFICER REJECTED YOUR BID AS BEING NONRESPONSIVE TO THE INVITATION, AS AMENDED. YOU CONTEND THAT YOU MAILED YOUR BID ON MARCH 10, RECEIVED AMENDMENT NO. 1 ON MARCH 13, AND ACKNOWLEDGED SUCH AMENDMENT BY LETTER SENT AIRMAIL ON MARCH 29, 1967. YOU ALSO CONTEND THAT EVEN IF THE AMENDMENT IN QUESTION WAS NOT ACKNOWLEDGED BY YOU TO FORM PART OF YOUR BID, IT DID NOT HAVE ANY BEARING ON YOUR OFFER TO PERFORM THE CONSTRUCTION WORK INVOLVED AND DID NOT AFFECT THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT INVOLVED.

IT IS REPORTED THAT MR. R. C. LARDNER, PRESIDENT OF YOUR FIRM, SUBMITTED A NOTARIZED CERTIFICATION DATED APRIL 14, 1967, TO THE EFFECT THAT HE HAD MAILED THE LETTER OF ACKNOWLEDGMENT OF THE AMENDMENT ON MARCH 29, 1967, AT ABOUT 10 A.M., AND ATTACHED A COPY OF THE LETTER ALLEGEDLY SENT ON MARCH 29 INDICATING THAT IT WAS SENT BY AIRMAIL. HOWEVER, THE CONTRACTING OFFICER STATES THAT:

"*** AFTER A CAREFUL SEARCH OF THE BUSINESS SERVICE CENTER, SCHEDULES AND SERVICES BRANCH, THE MAIL ROOM, THE DESIGN BRANCH, ESPECIALLY THE ELEVATOR SECTION, AND ALL THE FILES CONTAINING PROJECTS IN AND AROUND THE DETROIT AREA, WE HAVE BEEN UNABLE TO LOCATE SUCH A LETTER."

CONCERNING YOUR CONTENTION THAT AMENDMENT NO. 1 DID NOT AFFECT THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT SINCE, IN YOUR OPINION, THE EMPLOYMENT OF BRICKLAYERS OR CEMENT MASONS WOULD NOT BE REQUIRED IN THE PERFORMANCE OF THE PROCUREMENT, THE CONTRACTING OFFICER DETERMINED THAT THE WAGE RATES INCORPORATED INTO AMENDMENT NO. 1 WOULD HAVE A MATERIAL EFFECT ON THE PRICE OF THE PROCUREMENT. THIS DETERMINATION WAS BASED ON THE ADVICE OF QUALIFIED AND COMPETENT TECHNICAL GSA PERSONNEL. IN THIS RESPECT, IT IS REPORTED BY GSA THAT THE METHODS OF REMOVING THE OLD EQUIPMENT AND INSTALLING THE NEW ELEVATOR EQUIPMENT IN THE BUILDING WOULD INVOLVE THE FOLLOWING:

"METHOD NO. 1 AND NO. 2

"REMOVE THE PENTHOUSE WINDOW. ENLARGE OPENING TO SUIT MAXIMUM EQUIPMENT. EMPLOY AN OUTSIDE CRANE. REMOVE ALL OLD ELEVATOR EQUIPMENT THROUGH THE OPENING. HOIST NEW ELEVATOR EQUIPMENT FROM THE GROUND LEVEL TO THE PENTHOUSE THROUGH THE SAME OPENING. REBUILD OPENING AND REPLACE WINDOW. THIS WILL REQUIRE THE USE OF THE MASONRY TRADES.

"REMOVE THE ENTIRE ELEVATOR CAB, THE BRICK WALL SEPARATING THE TWO LEVELS IN THE PENTHOUSE. TEMPORARILY RELOCATE THE EXISTING CONTROLLERS. THE EXISTING ELEVATOR HOISTING MACHINE AND EQUIPMENT MAY BE USED TO MOVE NEW ELEVATOR EQUIPMENT INTO THE PENTHOUSE. REMOVE THE OLD ELEVATOR EQUIPMENT THROUGH THIS OPENING IN THE WALL BEFORE THE NEW CAB IS INSTALLED.

"IT CAN BE SEEN FROM THE METHODS DESCRIBED THAT THE CONTRACTOR IS CONFRONTED WITH THE NEED OF EMPLOYING MASONRY AND CEMENT TRADES. ANY OTHER MEANS OF TRANSPORTING THE HEAVY EQUIPMENT SPECIFIED IS NOT OBVIOUS TO US."

SINCE WE DO NOT POSSESS THE TECHNICAL KNOWLEDGE REQUIRED TO AUTHORITATIVELY REVIEW THESE STATEMENTS, WE MUST ACCEPT THE CONCLUSIONS ADMINISTRATIVELY REACHED AS CORRECT. 17 COMP. GEN. 554; 40 ID. 294, 297.

IT IS WELL ESTABLISHED THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE WHERE SUCH AMENDMENT COULD, AS HERE, AFFECT PRICE, QUANTITY OR QUALITY. 37 COMP. GEN. 785. 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. 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, SECTION 1003; 40 COMP. GEN. 447, 448; 42 ID. 490, 493. MOREOVER, WHEN, AS HERE, THERE IS A GENERAL CONFLICT BETWEEN THE CONTENTIONS OF A DISAPPOINTED BIDDER AND THE REPORT OF THE PROCUREMENT OFFICE, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE LATTER IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. 37 COMP. GEN. 568; 41 ID. 266, 269.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.