B-170351, AUG. 25, 1970

B-170351, AUG. 25, 1970

BID PROTEST -- AMENDMENT ACKNOWLEDGMENT DENIAL OF PROTEST OF LOW BIDDER AGAINST AWARD FOR REMODELING U.S. POST OFFICE IN HAMILTON, OHIO, TO INDUSTRIAL CONSTRUCTION CO., INC. LOW BIDDER WHOSE FAILURE TO ACKNOWLEDGE AN AMENDMENT WHICH WOULD APPLY NEW WAGE DETERMINATIONS WAS DUE TO ERROR BY WESTERN UNION MUST NEVERTHELESS BE CONSIDERED TO HAVE SUBMITTED A NONRESPONSIVE BID SINCE RULE THAT NONRESPONSIVE BID MAY NOT BE MADE RESPONSIVE BY CORRECTION OF MISTAKE, THOUGH HARSH ON DISAPPOINTED BIDDER, IT IS DICTATED BY FAIRNESS TO OTHER BIDDERS.

TO MR. JACK D. MCKEEHAN:

THIS CONCERNS YOUR PROTEST OF JULY 13, 1970, ON BEHALF OF BIBEE ELECTRIC COMPANY, AGAINST THE AWARD OF CONTRACT NO. GS-05BC-8854 TO INDUSTRIAL CONSTRUCTION COMPANY, INCORPORATED, BY THE GENERAL SERVICES ADMINISTRATION.

AN INVITATION FOR BIDS ON THIS CONTRACT FOR REPAIR AND IMPROVEMENT WORK AT THE UNITED STATES POST OFFICE IN HAMILTON, OHIO, WAS ISSUED ON FEBRUARY 24, 1970. BID OPENING WAS SET FOR MARCH 24, 1970. AMENDMENT NO. 1 DATED FEBRUARY 27, 1970, MODIFIED THE WAGE RATES APPLICABLE TO THE WORK. AMENDMENT NO. 2, BY TELEGRAM OF MARCH 23, 1970, POSTPONED THE BID OPENING DATE INDEFINITELY DUE TO THE POSTAL STRIKE IN EFFECT. AMENDMENT NO. 3 ISSUED ON MAY 1, 1970, SET FORTH NEW WAGE RATES FOR THE CONTRACT AND ESTABLISHED 2:00 P.M., MAY 15, 1970, AS THE NEW DATE FOR OPENING OF BIDS. BIBEE SUBMITTED THE LOW BID. INDUSTRIAL CONSTRUCTION SUBMITTED THE SECOND LOW BID OF THE SIX BIDS RECEIVED. HOWEVER, EACH OF THE THREE AMENDMENTS TO THE INVITATION FOR BIDS REQUIRED THAT BIDDERS ACKNOWLEDGE RECEIPT OF THE AMENDMENT EITHER ON THE BID FORM OR BY LETTER RECEIVED IN THE ISSUING OFFICE PRIOR TO BID OPENING. BIBEE ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 1 IN ITS BID FORM. RECEIPT OF AMENDMENT NO. 2 WAS ACKNOWLEDGED BY TELEGRAM OF MAY 14, 1970, WHICH STATED:

"THE PURPOSE OF THIS TELEGRAM IS TO ACKNOWLEDGE RECEIPT OF AMENDMENT NUMBER 2 DATED MARCH 23 1970 BE NO CHANGE IN OUR BID PRICE DUE TO THESE AMENDMENTS" RECEIPT OF AMENDMENT NO. 3 WAS UNACKNOWLEDGED BY BIBEE AND SINCE THAT AMENDMENT AFFECTED PRICE DUE TO THE NEW WAGE RATES SET FORTH THEREIN, THE CONTRACTING OFFICER CONSIDERED THE BID BY BIBEE NONRESPONSIVE. ON JUNE 12, 1970, AWARD WAS MADE TO INDUSTRIAL CONSTRUCTION AND BIBEE WAS ADVISED ITS BID WAS NONRESPONSIVE.

YOUR PROTEST AGAINST THE CONTRACT AWARDED TO INDUSTRIAL CONSTRUCTION IS BASED ON THE FACT, CONFIRMED BY WESTERN UNION, THAT BIBEE FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 3 ONLY THROUGH AN ERROR BY WESTERN UNION IN TRANSMITTING THE TELEGRAM OF MAY 14, 1970. THAT TELEGRAM SHOULD HAVE STATED:

"THE PURPOSE OF THIS TELEGRAM IS TO ACKNOWLEDGE RECEIPT OF AMENDMENT NUMBER 2 DATED MARCH 23 1970 AND AMENDMENT NUMBER 3 DATED MAY 1 1970 THERE WILL BE NO CHANGE IN OUR BID PRICE DUE TO THESE AMENDMENTS" WHILE IT HAS BEEN ESTABLISHED THAT WESTERN UNION DID INDEED MAKE AN ERROR IN TRANSMITTING BIBEE'S TELEGRAM OF MAY 14, 1970, THAT ERROR COULD NOT HAVE BEEN CORRECTED EVEN IF IT HAD BEEN DISCOVERED PRIOR TO AWARD. THIS OFFICE HAS CONSISTENTLY FOLLOWED THE RULE THAT AN OTHERWISE NONRESPONSIVE BID CANNOT BE MADE RESPONSIVE BY THE CORRECTION OF A MISTAKE MADE BY THE BIDDER. SEE 46 COMP. GEN. 434 (1966); ID. 418 (1966) AND 38 ID. 819 (1959). THIS RULE, WHILE POSSIBLY HARSH TO THE DISAPPOINTED BIDDER, IS DICTATED BY FAIRNESS TO OTHER BIDDERS. OTHERWISE A BIDDER BY ALLEGING MISTAKE OR REMAINING SILENT COULD ALTER ITS OFFER AND IN EFFECT HAVE A SECOND OPPORTUNITY, AFTER BID OPENING, TO SUBMIT AN ACCEPTABLE BID. FURTHER, A FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENTS WHICH APPLY NEW WAGE DETERMINATIONS TO THE CONTRACT WORK TO BE PERFORMED CANNOT BE WAIVED AS A MINOR INFORMALITY SINCE OTHERWISE THE BIDDER WOULD NOT BE REQUIRED TO PAY THE ESTABLISHED WAGE RATES WHICH CLEARLY AFFECT PRICE. SEE B-166530, JULY 3, 1969; B-166333, APRIL 8, 1969, AND B-165670, FEBRUARY 24, 1969.

THEREFORE, INASMUCH AS BIBEE CHOSE WESTERN UNION AS ITS AGENT TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 3 IT MUST ALSO ACCEPT THE RESPONSIBILITY FOR THAT COMPANY'S FAILURE TO DO SO. SINCE BIBEE'S BID WAS NONRESPONSIVE THE CONTRACTING OFFICER PROPERLY REJECTED IT AND MADE AWARD TO INDUSTRIAL CONSTRUCTION AS THE LOW RESPONSIVE BIDDER.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.