B-164154, JUL. 3, 1968

B-164154, JUL. 3, 1968

TO BRISTOL DYNAMICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1968, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT UNDER SOLICITATION NO. FPNTN-E3-02309-A-1-4-68 TO ANY OTHER FIRM SINCE YOU HAD SUBMITTED THE LOWEST "RESPONSIVE" BID.

THE SOLICITATION, ISSUED ON DECEMBER 4, 1967, REQUESTED BIDS FOR FS CLASS 5120 MECHANICAL STEERING WHEEL PULLERS. AMENDMENT NO. 1 TO THE SOLICITATION WAS ISSUED ON DECEMBER 15, 1967, WHICH INCREASED THE QUANTITY, CHANGED THE DELIVERY SCHEDULE, AND INCLUDED A NEW PURCHASE DESCRIPTION WHICH OMITTED THE PREVIOUSLY REQUIRED CARRYING CASE. AMENDMENT NO. 2 WAS ISSUED JANUARY 2, 1968, WHICH EXTENDED THE OPENING DATE FROM JANUARY 4 TO 17, 1968, DELETED THE BRAND NAME OR EQUAL PURCHASE DESCRIPTION, AND SUBSTITUTED IN LIEU THEREOF A GSA DRAWING WHICH INCLUDED A CARRYING CASE AS A PART OF THE ITEM. COPIES OF THE SOLICITATION AND EACH OF THE AMENDMENTS WERE MAILED TO FIRMS ON THE APPLICABLE MAILING LIST, INCLUDING YOUR FIRM. THE SOLICITATION PROVIDED IN PARAGRAPH 4 OF THE INSTRUCTIONS AND CONDITIONS AS FOLLOWS: "RECEIPT OF AN AMENDMENT TO A SOLICITATION BY AN OFFEROR MUST BE ACKNOWLEDGED (A) BY SIGNING AND RETURNING THE AMENDMENT, (B) ON THE REVERSE OF STANDARD FORM 33, OR (C) BY LETTER OR TELEGRAM. SUCH ACKNOWLEDGMENT MUST BE RECEIVED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS.)"

UPON THE OPENING OF BIDS ON JANUARY 17, 1968, IT WAS DISCOVERED THAT YOUR FIRM HAD NOT ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 2, AS REQUIRED BY THE TERMS OF THE SOLICITATION. SINCE THE AMENDMENT WAS ADMINISTRATIVELY DETERMINED, AND WE AGREE, TO HAVE INCLUDED MATERIAL MATTERS WHICH WOULD HAVE AN EFFECT ON PRICE AND QUALITY, YOUR BID WAS REJECTED AS NONRESPONSIVE. AWARD WAS MADE ON APRIL 15, 1968, TO THE LOWEST RESPONSIVE BIDDER.

YOUR PROTEST IS BASED ON THE CLAIM THAT AMENDMENT NO. 2 WAS WITHHELD FROM YOU AND THAT GSA PERSONNEL WERE, ON MARCH 21, 1968, (MORE THAN 2 MONTHS AFTER BID OPENING), MADE AWARE OF THE FACT THAT YOU DID NOT RECEIVE AMENDMENT NO. 2. IT APPARENTLY IS YOUR BELIEF THAT THE SOLICITATION SHOULD HAVE BEEN CANCELLED AND THE PROCUREMENT READVERTISED.

THE PROCUREMENT AGENCY HAS REPORTED THAT ITS RECORDS SHOW THAT COPIES OF THE AMENDMENT WERE MAILED TO THE SAME 63 PROSPECTIVE BIDDERS, INCLUDING YOUR FIRM, ON THE MAILING LIST TO WHICH THE ORIGINAL INVITATION AND AMENDMENT NO. 1 WERE MAILED. NO OTHER BIDDER HAS REPORTED NONRECEIPT OF THE AMENDMENTS AND THERE IS NO REASON TO BELIEVE THAT ANY OTHER PROSPECTIVE BIDDER FAILED TO RECEIVE A COPY OF AMENDMENT NO. 2. IN ANY EVENT, YOUR FAILURE TO RECEIVE THE AMENDMENT IS NOT CONCEDED TO BE THE FAULT OF THE PROCURING AGENCY. WE HAVE HELD THAT EVEN IF THE PROCURING AGENCY FAILED TO SEE THAT AN INTERESTED BIDDER HAS RECEIVED A COPY OF AN AMENDMENT, SUCH FACT DOES NOT WARRANT THE ACCEPTANCE OF THE BID OR MODIFICATION THEREOF SUBMITTED AFTER BID OPENING. 40 COMP. GEN. 126.

IN THIS REGARD, WE HAVE STATED THE PROPOSITION THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 85; 40 ID. 48. IF, AS HERE, 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. THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION, AS AMENDED, WOULD NOT OBLIGATE THE BIDDER TO PERFORM IN ACCORDANCE WITH THE AMENDMENT, AND WOULD BE PREJUDICIAL TO OTHER BIDDERS. WHILE YOUR FAILURE TO RECEIVE THE AMENDMENT IS REGRETTABLE, IT IS OUR OPINION THAT THE PRINCIPLES SET FORTH IN THE ABOVE-CITED DECISIONS REQUIRE THE REJECTION OF YOUR BID AS NONRESPONSIVE.

REGARDING CANCELLATION OF THE SOLICITATION AND READVERTISEMENT OF THE PROCUREMENT, WE HAVE TAKEN THE POSITION THAT THE CANCELLATION OF AN INVITATION AND READVERTISEMENT AFTER BIDS HAVE BEEN EXPOSED IS A SERIOUS MATTER WHICH MAY PROPERLY BE UNDERTAKEN ONLY FOR COGENT REASONS. 39 COMP. GEN. 396; 43 ID. 537. ALSO, WE HAVE HELD THAT THE FAILURE OF A BIDDER TO RECEIVE A COPY OF AN AMENDMENT TO AN INVITATION IS NOT A SUFFICIENT BASIS FOR CANCELLATION OF THE INVITATION WHERE ADEQUATE COMPETITION HAS BEEN OBTAINED AND THE PRICES QUOTED ARE FAIR AND REASONABLE. 43 COMP. GEN. 279, 281. IN THE INSTANT CASE, THERE EXISTED ADEQUATE COMPETITION AND THE LOW RESPONSIVE BID WAS CONSIDERED TO BE FAIR AND REASONABLE.

IN VIEW THEREOF, WE FIND NO LEGAL BASIS FOR DISAPPROVING THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID AS NONRESPONSIVE AND IN MAKING AN AWARD TO THE LOW, RESPONSIVE BIDDER. ACCORDINGLY, YOUR PROTEST IS DENIED.