B-173416, DEC 21, 1971
Highlights
WAS NONRESPONSIVE BECAUSE OF ITS FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT ADDING THE PROVISIONS OF 40 U.S.C. 333 TO THE TERMS OF THE INVITATION. 312 F.2D 418 (1963) IS NOT TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID WHERE THE BIDDER FAILS TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO THE SOLICITATION INCORPORATING THEREIN A PROVISION WHICH THE CONTRACTING OFFICER WAS REQUIRED BY LAW OR REGULATION TO INCORPORATE INTO THE CONTRACT TERMS. DACW29-71-B-0187 WAS NONRESPONSIVE BECAUSE OF ITS FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT ADDING THE PROVISIONS OF 40 U.S.C. 333 TO THE TERMS OF THE INVITATION. THAT THE BID OF KING FISHER WAS THEREFORE RESPONSIVE. YOU CONTEND THAT UNDER THE "CHRISTIAN DOCTRINE" OUR DECISION OF SEPTEMBER 13 IS INCORRECT.
B-173416, DEC 21, 1971
BID PROTEST - NONRESPONSIVE BID - AMENDMENTS AFFIRMING PRIOR DECISION WHICH HELD THAT THE BID OF KING FISHER MARINE SERVICE, INC., SUBMITTED UNDER AN IFB ISSUED BY THE CORPS OF ENGINEERS, WAS NONRESPONSIVE BECAUSE OF ITS FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT ADDING THE PROVISIONS OF 40 U.S.C. 333 TO THE TERMS OF THE INVITATION. THE DOCTRINE OF G. L. CHRISTIAN AND ASSOCIATES V UNITED STATES, 312 F.2D 418 (1963) IS NOT TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID WHERE THE BIDDER FAILS TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO THE SOLICITATION INCORPORATING THEREIN A PROVISION WHICH THE CONTRACTING OFFICER WAS REQUIRED BY LAW OR REGULATION TO INCORPORATE INTO THE CONTRACT TERMS. SEE B-169414, AUGUST 4, 1970.
TO HARRIS, COOK & BROWNING:
WE REFER TO YOUR LETTER OF SEPTEMBER 28, 1971, REQUESTING RECONSIDERATION OF DECISION B-173416, DATED SEPTEMBER 13, 1971, WHEREIN WE HELD THE BID OF KING FISHER MARINE SERVICE, INC., UNDER UNITED STATES ARMY CORPS OF ENGINEERS INVITATION FOR BIDS NO. DACW29-71-B-0187 WAS NONRESPONSIVE BECAUSE OF ITS FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT ADDING THE PROVISIONS OF 40 U.S.C. 333 TO THE TERMS OF THE INVITATION.
YOU CONTEND THAT UNDER THE REASONING OF G. L. CHRISTIAN AND ASSOCIATES V UNITED STATES, 312 F.2D 418 (1963), AS EXTENDED IN CONDEC CORPORATION V UNITED STATES, 369 F.2D 753 (1966), THE BIDDER, AS WELL AS THE GOVERNMENT, HAD NO OPTION BUT TO STRICTLY COMPLY WITH THE PROVISIONS OF THAT SECTION OF THE CODE, AND THAT THE BID OF KING FISHER WAS THEREFORE RESPONSIVE. CONSEQUENTLY, YOU CONTEND THAT UNDER THE "CHRISTIAN DOCTRINE" OUR DECISION OF SEPTEMBER 13 IS INCORRECT. ALTHOUGH WE HAVE HELD THIS DOCTRINE TO BE INAPPLICABLE IN SITUATIONS WHERE THE RESPONSIVENESS OF A BID IS IN QUESTION, YOU CONTEND THAT WE HAVE SO HELD ONLY WHERE THERE WAS SOME DISCRETION ON THE PART OF THE CONTRACTING OFFICER TO EITHER REQUIRE OR NOT REQUIRE THE PERFORMANCE SPECIFIED IN THE PARTICULAR LAW OR REGULATION. YOU CONTEND, THEREFORE, THAT SINCE THE CONTRACTING OFFICER WOULD HAVE HAD NO OPTION BUT TO REQUIRE IMPLEMENTATION BY KING FISHER OF THE PERTINENT SAFETY REQUIREMENTS, THE "CHRISTIAN DOCTRINE" SHOULD APPLY IN THE PRESENT CASE.
WE HAVE REEXAMINED THE BASES FOR OUR PRIOR DECISION IN LIGHT OF YOUR SEPTEMBER 28 LETTER AND FIND NO REASON TO REACH A DIFFERENT CONCLUSION. WE ARE UNAWARE OF THE DISTINCTION WHICH YOU SUGGEST EXISTS IN OUR APPLICATION OF THE "CHRISTIAN DOCTRINE" TO THE ISSUE OF BID RESPONSIVENESS. OUR OFFICE HAS HELD THAT THE "CHRISTIAN DOCTRINE" IS NOT TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID WHERE A BIDDER FAILS TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO THE SOLICITATION INCORPORATING THEREIN A PROVISION WHICH THE CONTRACTING OFFICER WAS REQUIRED BY LAW OR REGULATION TO INCORPORATE INTO THE CONTRACT TERMS. SEE B-169414, AUGUST 4, 1970, COPY HEREWITH.
ACCORDINGLY, THE DECISION OF SEPTEMBER 13, 1971, IS SUSTAINED.