B-175420, AUG 4, 1972

B-175420, AUG 4, 1972

BID PROTEST - NONRECEIPT OF AMENDMENT AFFIRMING DECISION OF MAY 22, 1972, WHICH DENIED A PROTEST OF INDIAN MADE PRODUCTS COMPANY AGAINST THE REJECTION OF THEIR BID UNDER AN IFB ISSUED BY GSA. GAO DOES NOT CONSIDER THE ASSERTION OF THE LACK OF RECEIPT OF THE PRICE CERTIFICATION MATERIAL AS CONSTITUTING SUFFICIENT EVIDENCE TO ESTABLISH THAT THE AMENDMENT WAS NOT MAILED, OR TO OVERCOME THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY.

TO INDIAN MADE PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1972, CONCERNING OUR DECISION OF MAY 22, 1972, B-175420, WHICH DENIED YOUR PROTEST AGAINST THE REJECTION OF YOUR BID BY THE GENERAL SERVICES ADMINISTRATION UNDER INVITATION FOR BIDS NO. FPNSO-EP-2035A. YOUR BID WAS REJECTED AS BEING NONRESPONSIVE BECAUSE IT WAS NOT ACCOMPANIED BY THE PRICE CERTIFICATION CONTAINED IN AMENDMENT NO. 1 TO THE INVITATION, WHICH WAS FORWARDED TO PROSPECTIVE BIDDERS BY THE PROCURING ACTIVITY.

YOU SAY IT IS NOT THE INTENTION OF YOUR LETTER OF JUNE 2 THAT YOU SHOULD RECEIVE A CONTRACT, HOWEVER, YOU CONTEND THAT THE AMENDMENT WAS NOT MAILED TO YOU AND THAT WE DO NOT HAVE ALL THE DETAILS FROM THE CONTRACTING OFFICER. THIS CONTENTION WAS NOT SET OUT IN YOUR ORIGINAL PROTEST, AND THEREFORE WAS NOT ADDRESSED IN OUR DECISION. HOWEVER, UPON RECEIPT OF YOUR LETTER OF JUNE 2 WE REQUESTED A FURTHER REPORT FROM THE GENERAL SERVICES ADMINISTRATION. IN RESPONSE THERETO WE HAVE BEEN FURNISHED A STATEMENT ON BEHALF OF THE CONTRACTING OFFICER ADVISING THAT A COPY OF AMENDMENT NO. 1 (WHICH INCORPORATED THE PRICE CERTIFICATION) WAS MAILED ON AUGUST 27, 1971, TO EVERY BIDDER ON THE BIDDERS MAILING LIST, INCLUDING INDIAN MADE PRODUCTS COMPANY.

YOUR ASSERTION THAT THE AMENDMENT WAS NOT MAILED TO YOU APPEARS TO BE MADE SOLELY ON THE BASIS THAT THE AMENDMENT WAS NOT RECEIVED BY YOU FROM THE POSTAL AUTHORITIES. IN THIS CONNECTION, YOU ARE ADVISED THAT WE DO NOT CONSIDER SUCH A LACK OF RECEIPT AS CONSTITUTING SUFFICIENT EVIDENCE TO ESTABLISH THAT THE AMENDMENT WAS NOT MAILED, OR TO OVERCOME THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY.

IF, AS YOU CONTEND, YOU DID NOT RECEIVE AMENDMENT NO. 1, WE RECOGNIZE THE UNFORTUNATE POSITION IN WHICH YOU WERE PLACED, AND THAT YOUR BID WAS NOT CONSIDERED FOR AWARD THROUGH NO FAULT OF YOUR OWN. HOWEVER, AS EXPLAINED IN THE DECISION OF MAY 22, THE PRICE CERTIFICATION WAS A MATERIAL REQUIREMENT, AND YOUR BID, WHICH DID NOT INCLUDE THE PRICE CERTIFICATION, COULD NOT HAVE PROPERLY BEEN CONSIDERED FOR AWARD. ACCORDINGLY, OUR DECISION OF MAY 22 MUST BE AFFIRMED.