B-174220, JAN 17, 1972, 51 COMP GEN 408

B-174220, JAN 17, 1972, 51 COMP GEN 408

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA ACKNOWLEDGMENT - WAIVER - BASIS THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT ISSUED ON STANDARD FORM 30 TO CORRECT THE DELIVERY DATE STATED IN THE INVITATION FOR BIDS TO PROCURE LIBRARY SHELVES, AND WHICH CONTAINED STANDARD FORM 33A, TO INCLUDE THE INSTALLATION OF THE SHELVES MAY NOT BE WAIVED AS A MINOR INFORMALITY, NOTWITHSTANDING WAIVER OF THE PROVISION IN THE AMENDMENT FOR THE EXTENSION OF THE BID OPENING DATE WOULD BE PROPER, SINCE THE CORRECTION OF THE DELIVERY PROVISION HAD MORE THAN A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, DELIVERY, AND PERFORMANCE AS THE BIDDER UNDER THE INITIAL INVITATION WOULD ONLY BE OBLIGATED TO MAKE DELIVERY AND NOT TO INSTALL THE SHELVES IN THE PERIOD STATED. FURTHERMORE, THE STANDARD FORMS USED ALTHOUGH NOT REQUIRING AN AMENDMENT TO BE SIGNED AND RETURNED, PROVIDE FOR COMPLIANCE BY OTHER MEANS WITH THE MANDATORY ACKNOWLEDGMENT REQUIREMENT.

TO HILLSIDE METAL PRODUCTS INC., JANUARY 17, 1972:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS L62-2127, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), LANGLEY RESEARCH CENTER, HAMPTON, VIRGINIA.

THE ABOVE-REFERENCED INVITATION WAS ISSUED ON JULY 29, 1971, FOR CERTAIN SHELVING, DESCRIBED IN THE SOLICITATION SCHEDULE AS:

SHELVING, LIBRARY, MULTI-TIER, BRACKET TYPE; ALL FIRST TIER SHELVING AS SHOWN IN FIRST TIER PLANS, STAIRWAY, AND SECOND FLOOR DECK, ASSEMBLED IN PLACE *** ; SHALL BE IN ACCORDANCE WITH ATTACHED NASA SPECIFICATION NO. L62-2127 DATED JULY 29, 1971.

PARAGRAPH 1 OF THE SPECIFICATION STATED:

THE WORK INCLUDED UNDER THIS SECTION SHALL CONSIST OF FURNISHING, FABRICATION, DELIVERY AND INSTALLING ALL LIBRARY BOOK STACKS *** .

ADDITIONALLY, IT WAS PROVIDED UNDER "DELIVERY REQUIREMENTS" ON PAGE 4 OF THE IFB: "DELIVERY IS REQUIRED TO BE MADE WITHIN 135 DAYS AFTER DATE OF CONTRACT AWARD." BID OPENING INITIALLY WAS SET FOR AUGUST 18, 1971.

BY TELEGRAM OF AUGUST 13, 1971, ANOTHER BIDDER REQUESTED THE PROCURING ACTIVITY TO INTERPRET THE DELIVERY REQUIREMENTS OF THE IFB. THE BIDDER INQUIRED:

DOES DELIVERY MEAN DELIVERY OF MATERIAL TO DESTINATION OR INSTALLATION TO BE COMPLETED WITHIN 135 DAYS AFTER DATE OF CONTRACT AWARD?

ON AUGUST 16, 1971, THE USING ACTIVITY ADVISED THE PROCURING ACTIVITY THAT THE PROVISIONS OF THE IFB "MAY NOT BE ENTIRELY CONSISTENT" AND EXPRESSED ITS PREFERENCE "TO HAVE THIS INSTALLATION COMPLETED WITHIN 135 DAYS *** ." THIS INCONSISTENCY WAS CORRECTED BY AMENDMENT NO. 1 TO THE IFB, DATED AUGUST 17, 1971, WHICH ADVISED THE BIDDERS:

SUBJECT SOLICITATION IS HEREBY AMENDED AS FOLLOWS:

(A) ON PAGE 4 UNDER DELIVERY REQUIREMENTS THE FIRST LINE THEREOF IS HEREBY CORRECTED TO READ: DELIVERY AND INSTALLATION IS REQUIRED TO BE MADE WITHIN 135 DAYS, ETC.

(B) THE DUE DATE FOR BIDS IS HEREBY EXTENDED TO *** AUGUST 25, 1971.

AMENDMENT NO. 2 TO THE SOLICITATION, ISSUED ON AUGUST 23, 1971, FURTHER EXTENDED THE BID OPENING TO SEPTEMBER 9, 1971.

THE FOLLOWING BIDS WERE RECORDED AT THE BID OPENING:

FIRM AMOUNT OF BID DISCOUNT

HILLSIDE METAL PRODUCTS $35,615.35 1/2 PERCENT - 20 DAYS.

ESTEY CORPORATION 40,143.00 1/4 OF 1 PERCENT - 20 DAYS.

VIRGINIA METAL PRODUCTS 49,829.00 NET

REMINGTON RAND 61,883.00 NET

YOUR FIRM AND REMINGTON RAND FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENTS NO. 1 AND 2. IT WAS DETERMINED THAT YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 COULD NOT BE WAIVED AS A MINOR INFORMALITY SINCE THE AMENDMENT HAD MORE THAN A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, DELIVERY AND PERFORMANCE. ALSO, IN THE VIEW OF THE PROCURING ACTIVITY, FAILURE TO ACKNOWLEDGE THE AMENDMENT PROVIDED YOU WITH THE OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY PRESENTING INFORMATION THAT THE AMENDMENT HAS BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. ACCORDINGLY, YOUR BID WAS REJECTED AS BEING NONRESPONSIVE AND AWARD WAS MADE ON SEPTEMBER 22 TO ESTEY CORPORATION AS THE LOW RESPONSIVE BIDDER.

YOU CONTEND THAT THE REJECTION OF YOUR BID WAS IMPROPER SINCE, BY ITS TERMS, AMENDMENT NO. 1 DID NOT REQUIRE ACKNOWLEDGMENT. ALTERNATIVELY, YOU MAINTAIN THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY IN YOUR BID.

IN REGARD TO YOUR FIRST CONTENTION, WE OBSERVE THAT PARAGRAPH 4 OF STANDARD FORM 33A (MARCH 1969 EDITION), WHICH FORMED A PART OF THE SOLICITATION, INSTRUCTED BIDDERS:

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 ACKNOWLEDGEMENT MUST BE RECEIVED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS.

AMENDMENTS NO. 1 AND 2 WERE ISSUED ON STANDARD FORM 30 (JULY 1966 EDITION), BLOCK 9 OF WHICH STATED IN PART:

OFFERORS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SPECIFIED IN THE SOLICITATION, OR AS AMENDED, BY ONE OF THE FOLLOWING METHODS:

(A) BY SIGNING AND RETURNING COPIES OF THIS AMENDMENT: (B) BY ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE OFFER SUBMITTED; OR (C) BY SEPARATE LETTER OR TELEGRAM *** . FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. ***

YOU MAINTAIN THAT ACKNOWLEDGMENT OF AMENDMENT NO. 1 WAS NOT REQUIRED SINCE IT WAS INDICATED IN BLOCK 13 OF STANDARD FORM 30 THAT THE "CONTRACTOR/OFFEROR IS NOT REQUIRED TO SIGN THIS DOCUMENT." WE REGARD THIS INSTRUCTION AS ENTIRELY CONSISTENT WITH PARAGRAPH 4 OF STANDARD FORM 33 AND BLOCK 9 OF STANDARD FORM 30, QUOTED ABOVE. BOTH OF THOSE PROVISIONS STATE THAT AN AMENDMENT "MUST" BE ACKNOWLEDGED BY ONE OF THREE METHODS, TWO OF WHICH DO NOT REQUIRE THE BIDDER TO SIGN AND RETURN THE AMENDMENT. THEREFORE, WHILE YOU WERE NOT REQUIRED TO SIGN THE AMENDMENT, ACKNOWLEDGMENT OF IT IN ANOTHER MANNER WAS NECESSARY FOR YOUR BID TO BE RESPONSIVE.

YOUR ALTERNATIVE ARGUMENT PRESENTS THE QUESTION WHETHER THE FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1 SHOULD HAVE BEEN WAIVED AS A MINOR INFORMALITY OR IRREGULARITY IN YOUR BID. AS AN EXAMPLE OF WHEN WAIVER WOULD BE APPROPRIATE, NASA PROCUREMENT REGULATION 2.405(IV)(B) INCLUDES THE:

FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF

(B) THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON, OR THE RELATIVE STANDING OF BIDDERS, SUCH AS AN AMENDMENT CORRECTING A TYPOGRAPHICAL MISTAKE IN THE NAME OF THE NASA INSTALLATION.

WE CONSIDER THE FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1, INSOFAR AS IT EXTENDED THE BID OPENING DATE, TO HAVE BEEN A MINOR INFORMALITY WHICH PROPERLY COULD HAVE BEEN WAIVED. SEE B-161577, NOVEMBER 21, 1968. HOWEVER, REGARDING THE CHANGE IN THE DELIVERY REQUIREMENTS MADE BY AMENDMENT NO. 1, IT APPEARS THAT A BIDDER WHO ACKNOWLEDGED THAT AMENDMENT WOULD BE OBLIGATED TO DELIVER AND COMPLETELY INSTALL THE SHELVING WITHIN 135 DAYS AFTER CONTRACT AWARD. A BIDDER WHO FAILED TO ACKNOWLEDGE THE AMENDMENT WOULD BE OBLIGATED TO DELIVER THE SHELVING MATERIAL, BUT NOT TO COMPLETE ITS INSTALLATION, WITHIN THAT TIME PERIOD. IN VIEW THEREOF, WE MUST CONCUR IN THE ADMINISTRATIVE DETERMINATION THAT THE AMENDMENT HAD MORE THAN A TRIVIAL OR NEGLIGIBLE EFFECT. THEREFORE, THE REJECTION OF THE BID AS NONRESPONSIVE WAS PROPER.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.