B-172486, MAY 11, 1971

B-172486, MAY 11, 1971

BID PROTEST - BID RESPONSIVENESS - AMENDMENTS DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF CONTRACT TO PACIFIC VENTURES, INC., LOW BIDDER, UNDER AN IFB ISSUED BY THE ARMY ENGINEERING DISTRICT, ANCHORAGE, ALASKA, FOR THE CONSTRUCTION OF AN UNDERGROUND POWERHOUSE. ALTHOUGH SUCCESSFUL LOW BIDDER DID NOT SUBSTITUTE THE NEW AND REVISED PAGES CONTAINED IN AN AMENDMENT, BUT INSTEAD MODIFIED THE SUPERSEDED BID SCHEDULE, SINCE THE AMENDMENT WAS SPECIFICALLY REFERRED TO IN THE BID, THE COMP. GEN. CONCLUDES THAT THE BIDDER INTENDED TO BE BOUND BY THE TERMS OF THE OPTION CONTAINED THEREIN. FURTHER CHANGES AND ERASURES OF PRICES WERE MADE IN THE EXTENSION PRICE AND NONE OF THE UNIT PRICES WERE SO ALTERED; THE FAILURE TO INITIAL THE CHANGES WAS THEREFORE PROPERLY WAIVED PURSUANT TO ASPR 2-405. ACCORDINGLY THE PROTEST IS DENIED.

TO SELLERS, CONNER AND CUNEO:

BY TELEFAXES DATED MARCH 30 AND APRIL 7, 1971, AND LETTER DATED APRIL 16, 1971, YOU PROTEST ON BEHALF OF AMELCO CORPORATION (AMELCO), AGAINST ANY AWARD TO PACIFIC VENTURES, INCORPORATED (PACIFIC), UNDER INVITATION FOR BIDS (IFB) NO. DACW 85-71-B-0019 ISSUED ON MARCH 3, 1971, BY THE UNITED STATES ARMY ENGINEER DISTRICT, AT ANCHORAGE, ALASKA, FOR THE CONSTRUCTION OF AN UNDERGROUND POWERHOUSE AND INSTALLATION OF EQUIPMENT IN AN UNDERGROUND CHAMBER EXCAVATED BY OTHERS AT SNETTISHAM, ALASKA.

THE SUBJECT PROCUREMENT WAS INITIALLY SOLICITED UNDER INVITATION FOR BIDS (IFB) NO. DACW 85-71-B-0005 ISSUED ON OCTOBER 19, 1970; HOWEVER, AS A RESULT OF THE PRESIDENTIAL PROCLAMATION REMOVING THE APPLICATION OF THE DAVIS-BACON ACT BIDS WERE REJECTED UNDER THE IFB OF OCTOBER 19 AND THE WORK READVERTISED UNDER THE IFB OF MARCH 3, OMITTING THE DAVIS BACON ACT REQUIREMENTS BUT UTILIZING THE SAME PLANS AND SPECIFICATIONS.

AMENDMENT R-2 TO THE SUBJECT IFB WAS ISSUED MARCH 17, 1971, MAKING REVISIONS TO THE GENERAL PROVISIONS, SPECIAL PROVISIONS AND TECHNICAL PROVISIONS, AND REVISING THE BID SCHEDULE AS FOLLOWS:

A. ON PAGE BS-1, ITEM 13 WAS DELETED;

B. ON PAGE BS-2, ITEM 27, THE ESTIMATED QUANTITIES WERE CHANGED FROM 500 TO 535;

C. ON PAGE BS-8, ITEM 130, INSTALL POWERLINE CARRIER EQUIPMENT, WAS ADDED AS A BASIC BID ITEM. ALSO ON PAGE BS-8, OPTIONAL ITEM 1A, METAL ARCH CEILING, WAS ADDED.

D. ON PAGE BS-9 (A SUPPLEMENTAL SHEET TO STANDARD FORM 22, INSTRUCTIONS TO BIDDERS) WAS REVISED TO ADD PARAGRAPH 6 WHICH READS: "EVALUATION OF BIDS: BIDS WILL BE EVALUATED FOR THE PURPOSE OF AWARD BY ADDING THE PRICE FOR OPTION ITEM 1A TO THE TOTAL PRICE FOR THE BASIC BID ITEMS. EVALUATION OF THE OPTION WILL NOT OBLIGATE THE GOVERNMENT TO EXERCISE THE OPTION. ANY BID WHICH IS MATERIALLY UNBALANCED AS TO PRICES FOR BASIC AND OPTION QUANTITIES MAY BE REJECTED AS NONRESPONSIVE. AN UNBALANCED BID IS ONE WHICH IS BASED ON PRICES SIGNIFICANTLY LESS THAN COST FOR SOME WORK AND PRICES WHICH ARE SIGNIFICANTLY OVERSTATED FOR OTHER WORK. THE GOVERNMENT RESERVES THE RIGHT TO EXERCISE THE AWARD OF THE OPTION FOR 90 DAYS FOLLOWING DATE OF BASIC AWARD." BIDDERS WERE INSTRUCTED TO SUBSTITUTE THE NEW AND REVISED PAGES FOR THE SUPERSEDED PAGES.

BIDS WERE OPENED ON MARCH 25, 1971, AND PACIFIC'S BID OF $3,762,152.25 WAS LOW WHILE AMELCO'S BID OF $3,797,000 WAS SECOND LOW. THE PACIFIC BID CONTAINED AN ACKNOWLEDGEMENT OF AMENDMENT NO. R-2; HOWEVER, THE LOW BIDDER DID NOT SUBSTITUTE THE REVISED PAGES OF THE AMENDMENT BUT RATHER MODIFIED THE SUPERSEDED BID SCHEDULE PAGES TO CONFORM TO THE BID SCHEDULE AS REVISED BY AMENDMENT R-2. A PRICE WAS INSERTED FOR OPTION ITEM 1A BUT THE BID DID NOT INCLUDE PARAGRAPH 6 OF THE REVISED BIDDING SCHEDULE WHICH EXPRESSES THE METHOD OF EVALUATION OF BIDS AND RESERVES TO THE GOVERNMENT A 90-DAY OPTION TO AWARD THE OPTIONAL ITEM.

YOU CONTEND THAT BECAUSE OF THE FAILURE OF THE PACIFIC BID TO INCLUDE PARAGRAPH 6 OF THE REVISED BIDDING SCHEDULE, THE BID EVIDENCED AN INTENTION BY THE BIDDER NOT TO BE BOUND BY THE TERMS OF PARAGRAPH 6, AND THEREFORE THE BID IS NONRESPONSIVE. IT IS ALSO CONTENDED THAT THE LOW BID IS NONRESPONSIVE BECAUSE ERASURES AND CHANGES WERE MADE IN ESTIMATES CONTAINED IN THE BIDDING SCHEDULE WHICH WERE NOT INITIALED AS REQUIRED BY STANDARD FORM 22.

WHETHER PACIFIC BY ITS BID INTENDED TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE SUBJECT IFB, NOTWITHSTANDING ITS FAILURE TO INCLUDE THE REVISED OPTION PROVISION CONTAINED IN PARAGRAPH 6 WITH ITS BID, IS TO BE DETERMINED FROM THE BID ITSELF. THE BASIC QUESTION INVOLVED IS WHETHER ACCEPTANCE OF PACIFIC'S BID AS SUBMITTED WOULD CONSUMMATE A VALID AND BINDING CONTRACT REQUIRING IT TO HONOR THE GOVERNMENT'S RIGHT TO EXERCISE ITS OPTION.

IN 42 COMP. GEN. 502 (1963), WHICH YOU CITE, THIS OFFICE HELD THAT SPECIAL PROVISIONS WHICH WERE ATTACHED TO THE INVITATION FOR BIDS WOULD NOT BE BINDING UNLESS SUBMITTED WITH THE BID AND THE FAILURE TO RETURN THE ATTACHMENTS WITH THE BID RENDERED THAT BID NONRESPONSIVE. THIS HOLDING WAS BASED ON THE FACT THAT THE LANGUAGE OF THE EXECUTED BID FORM BOUND THE BIDDER ONLY TO THOSE SCHEDULES AND PROVISIONS "ATTACHED" TO THE BID WHEN SUBMITTED AND THE BID AS SUBMITTED DID NOT EXPRESS ANY INTENTION TO BE BOUND BY THE OMITTED SPECIAL PROVISIONS.

SINCE AMENDMENT R-2 IS SPECIFICALLY REFERRED TO IN PACIFIC'S BID AND PACIFIC INCLUDED AN ESTIMATE FOR THE OPTION ITEM, IT WOULD BE EXTREMELY DIFFICULT FOR THIS OFFICE TO CONCLUDE THAT THE BIDDER DID NOT INTEND TO BE BOUND BY THE TERMS OF THE OPTION. IT IS A RULE OF CONTRACT LAW THAT WHERE A WRITING REFERS TO ANOTHER DOCUMENT, THAT OTHER DOCUMENT, OR SO MUCH OF IT AS IS REFERRED TO, IS TO BE INTERPRETED AS A PART OF THE WRITING. SEE 44 COMP. GEN. 774, 776 (1965), AND THE AUTHORITIES CITED THEREIN. BASED ON THE FOREGOING, WE CONCLUDE THAT PARAGRAPH 6 WAS INCORPORATED INTO AND MADE A PART OF THE BID OF PACIFIC.

IN REGARD TO AMELCO'S CONTENTION THAT PACIFIC'S BIDDING SCHEDULE CONTAINS UNINITIALED CHANGES AND ERASURES IN CONTRAVENTION OF PARAGRAPH 5 OF STANDARD FORM 22 "INSTRUCTIONS TO BIDDERS," IT MUST BE NOTED THAT ALL THE CHANGES MADE WERE IN THE EXTENSION PRICE AND NONE OF THE UNIT PRICES WERE SO ALTERED. IN THIS CONNECTION, THE BIDDING SCHEDULE PROVIDES THAT ALL EXTENSIONS OF UNIT PRICES ARE SUBJECT TO GOVERNMENT VERIFICATION AND IN CASE OF VARIATION THE UNIT PRICE WILL BE CONSIDERED TO BE THE BID. UNDER SUCH CIRCUMSTANCES, WE CONCLUDE THAT THERE IS NO DOUBT AS TO THE INTENDED BID PRICES AND THAT THE FAILURE TO INITIAL THE CHANGES IN THIS INSTANCE WAS A MINOR INFORMALITY WHICH WAS PROPERLY WAIVED PURSUANT TO ASPR 2-405. SEE 49 COMP. GEN. 541 (1970).

AMELCO'S PROTEST MUST THEREFORE BE DENIED.