B-169897, AUG. 26, 1970

B-169897, AUG. 26, 1970

BID PROTEST -- AMENDMENT ACKNOWLEDGMENT DENIAL OF PROTEST AGAINST AWARD TO SECOND LOW BIDDER BY GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE FOR QUANTITY OF MECHANICAL PULLERS. LOW BIDDER WHO DID NOT ACKNOWLEDGE AMENDMENT CHANGING THE BASIS FOR SUBMISSION OF BIDS AND RECORD DOES NOT INDICATE THAT AMENDMENT WAS SENT TO BIDDER HAD BID PROPERLY REJECTED AS NONRESPONSIVE.

TO HURON METAL PRODUCTS, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEFAX DATED MAY 25, 1970, AND YOUR LETTER DATED JUNE 4, 1970, WITH ENCLOSURES, PROTESTING AWARD TO THE SECOND LOW BIDDER BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, UNDER INVITATION FOR BIDS NO. FPNTN-G4-23617-A-4-10-70.

THE SOLICITATION WAS ISSUED MARCH 11, 1970, AND WAS FOR A DEFINITE QUANTITY CONTRACT FOR MECHANICAL PULLERS. AMENDMENT NO. 1, EFFECTIVE MARCH 31, 1970, CHANGED THE BASIS FOR SUBMISSION OF OFFERS FROM F.O.B. ORIGIN AND/OR F.O.B. DESTINATION TO F.O.B. DESTINATION ONLY. COPIES OF BOTH THE SOLICITATION AND THE AMENDMENT WERE MAILED TO EACH OF THE POTENTIAL BIDDERS ON THE BIDDERS MAILING LIST FOR THE COMMODITY INVOLVED. YOUR FIRM, WHICH WAS NOT ON THE MAILING LIST, MADE A TELEPHONE REQUEST FOR A COPY OF THE SOLICITATION ON MARCH 31, 1970. A COPY OF THE SOLICITATION WAS FORWARDED TO YOU ON THAT DATE. THE ADMINISTRATIVE OFFICE REPORTS THAT ALTHOUGH THE AMENDMENT HAD BEEN SENT OUT FOR PRINTING AND DISTRIBUTION ON THAT DATE, NO COPY WAS THEN AVAILABLE. THEY HAVE NO RECORD THAT A COPY OF THE AMENDMENT WAS ACTUALLY SENT TO YOU, AND THEY CONCLUDE THAT, IN ALL PROBABILITY, NONE WAS SENT.

BIDS WERE OPENED ON APRIL 10 AND EIGHT BIDS, INCLUDING THAT SUBMITTED BY HURON, WERE RECEIVED. ALTHOUGH YOUR BID WAS LOW, IT HAD NOT ACKNOWLEDGED RECEIPT OF THE AMENDMENT, AND THERE WAS NO INDICATION THAT YOU HAD RECEIVED THE AMENDMENT. THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE SOLICITATION BECAUSE THE AMENDMENT CHANGED THE BASIS FOR THE SUBMISSION OF OFFERS AND, THEREFORE, CONTAINED MATTERS WHICH HAD AN EFFECT ON PRICE.

OUR OFFICE HAS LONG HELD THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THE AMENDMENT RENDERS THE BID NONRESPONSIVE AND IS, THEREFORE, FOR REJECTION. SEE B-164014, MAY 28, 1968; 37 COMP. GEN. 785 (1958). THIS RULE IS NOT CHANGED BY THE FACT THAT THE BIDDER DID NOT RECEIVE THE UNACKNOWLEDGED AMENDMENT. 40 COMP. GEN. 126 (1960).

THE RATIONALE BEHIND THE PROPOSITION IS THAT MATTERS AFFECTING PRICE, QUANTITY OR QUALITY ARE MATTERS OF SUBSTANCE AND AS WAS STATED IN 17 COMP. GEN. 554, 558-559 (1938):

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V MOHR, 216 ILL. 320; 74 N. E. 1056--

"' *** WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--A DIRECT VIOLATION OF LAW- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

FURTHER, CLARIFICATION OF A BID AFTER OPENING GIVES THE BIDDER AN OPTION TO DECIDE, AFTER OTHER BIDS HAVE BEEN EXPOSED, WHETHER TO BECOME ELIGIBLE FOR AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF SHOWING THAT MATERIAL ADDENDA HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. 41 COMP. GEN. 550, 552 (1962). IN THAT REGARD, A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER AND THE AWARD BY THE GOVERNMENT IS AN ACCEPTANCE OF THE OFFER WHICH CREATES THE CONTRACT. THEREFORE, IF THE ADDENDUM IS NOT ACKNOWLEDGED WITH THE BID, THE GOVERNMENT COULD NOT WITHOUT THE BIDDER'S CONSENT, ACCEPT THE OFFER AND REQUIRE PERFORMANCE IN ACCORDANCE WITH THE AMENDED INVITATION. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY AGREEING TO ABIDE BY THE PROVISIONS OF THE INVITATION, AS AMENDED, OR TO PRECLUDE AWARD BY ALLEGING NONRECEIPT OF THE ADDENDUM, OR SAYING NOTHING, WOULD GIVE THE BIDDER AN UNFAIR ADVANTAGE OVER BIDDERS WHOSE BIDS CONFORM IN EVERY RESPECT TO THE INVITATION AND AMENDMENTS.

IN THE PRESENT MATTER, THE AMENDMENT HAD A MATERIAL EFFECT ON PRICE SINCE IT RESTRICTED BID PRICES TO INCLUDE DELIVERY F.O.B. DESTINATION ONLY.

WE MUST POINT OUT THAT PRIOR TO THE AMENDMENT, THE BASIC SOLICITATION CLAUSE 1 ON PAGE 6 PROVIDED:

"1. SUBMISSION OF OFFERS: OFFERS MAY BE SUBMITTED F.O.B. ORIGIN AND/OR F.O.B. DESTINATION."

YOUR BID WAS AS FOLLOWS:

SUPPLIES/ "ITEM NO. SERVICES QUANTITY UNIT PRICE AMOUNT "1.

5120-592-3368 2,898EA $4.62 $13388.76

PULLER, MECHANICAL:

IN ACCORDANCE WITH ORDNANCE DRAWING 8585347

DATED JUNE 6, 1956 AND SUPPORT DRAWINGS

8585364, 8585395, 8585586 AND 8585305.

F.O.B. NEW YORK -REGION 2 300 EA

F.O.B. KANSAS CITY - REGION 6 240 EA

F.O.B. FT. WORTH - REGION 7 2,358 EA "ALL OR NONE. NO REDUCTION IN QUANTITY WITHOUT OUR PRIOR CONSENT."

IT IS OBVIOUS THAT YOUR BID WAS OFFERED ON AN ORIGIN BASIS, SINCE NO AMOUNTS WERE SET OPPOSITE THE DESTINATION POINTS, AND IT WOULD BE UNREASONABLE TO CONSIDER THE BID AS APPLICABLE TO BOTH F.O.B. ORIGIN AND F.O.B. DESTINATION.

ACCORDINGLY, IN VIEW OF THE ABOVE, THE ACTION OF THE CONTRACTING OFFICER MUST BE CONSIDERED PROPER, AND YOUR PROTEST MUST BE DENIED.