B-181673, DEC 12, 1974

B-181673, DEC 12, 1974

WHERE PROTESTER MERELY SUBMITS BROAD ALLEGATION THAT ADDENDUM, ACKNOWLEDGED UNTIMELY BY LOW BIDDER, IS MATERIAL; WHERE COGNIZANT GOVERNMENT PERSONNEL STATE THAT ADDENDUM DID NOT AFFECT QUANTITY, QUALITY, OR PRICE; AND WHERE THREE OF FOUR BIDDERS, INCLUDING PROTESTER, INDICATE THAT ADDENDUM DID NOT AFFECT THEIR PRICES, WAIVER OF FAILURE TO ACKNOWLEDGE ADDENDUM AS MINOR INFORMALITY UNDER FPR SEC. 1-2.405(D) (1964 ED. CIRC. 1) WAS PROPER. ALSO, EXTENSION OF BID OPENING DATE IN ADDENDUM HAD NO EFFECT ON QUALITY, QUANTITY, OR PRICE.

R. C. HUGHES CORP.:

THE PRESENT CASE INVOLVES THE FAILURE BY THE LOW BIDDER TO ACKNOWLEDGE TIMELY THE RECEIPT OF ADDENDUM NO. 7 ISSUED UNDER SCHEDULE I OF INVITATION FOR BIDS NO. 4421 BY THE BONNEVILLE POWER ADMINISTRATION, DEPARTMENT OF THE INTERIOR. ADDENDUM NO. 7 EXTENDED THE BID OPENING DATE FROM JUNE 4 TO JUNE 10, 1974, AND ADVISED THE BIDDERS OF 14 ACCESS ROADS TO THE PROJECT SITE FOR WHICH THE GOVERNMENT HAD NOT ACQUIRED THE RIGHTS-OF-WAY. BIDDERS WERE WARNED THAT FAILURE TO ACKNOWLEDGE PRIOR TO THE TIME SPECIFIED FOR OPENING RECEIPT OF AN ADDENDUM AFFECTING QUANTITY, QUALITY, OR PRICE WOULD REQUIRE REJECTION OF THE BID.

IT IS THE BELIEF OF THE R.C. HUGHES CORP., THE SECOND LOW BIDDER, THAT THE LOW BID SHOULD BE REJECTED AS NONRESPONSIVE IN THAT ADDENDUM NO. 7 AFFECTS THE PRICE THAT A BIDDER WOULD SUBMIT ON THE PROJECT SINCE, WITHOUT GRANTING ANY RELIEF FROM LIQUIDATED DAMAGES OR THE COMPLETION DATE, IT DENIES THE CONTRACTOR RIGHTS-OF-WAY UNTIL SOME FUTURE UNKNOWN DATE. IT IS THE POSITION OF THE CONTRACTING AGENCY THAT THE CONTRACTING OFFICER'S WAIVER OF THE FAILURE BY THE LEWIS CONSTRUCTION CO. (LEWIS), TO TIMELY ACKNOWLEDGE ADDENDUM NO. 7 AS A MINOR INFORMALITY UNDER SECTION 1- 2.405(D)(2) OF THE FEDERAL PROCUREMENT REGULATIONS (1964 ED. CIR. 1) AND AWARD TO LEWIS WERE CORRECT. THAT SECTION PERMITS WAIVER OR CORRECTION OF A FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT WHICH INVOLVES ONLY MATTER OF FORM OR HAS NO OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.

THE CONSTRUCTION ENGINEER TECHNICIAN FOR THE PROJECT ADVISED THE CONTRACTING OFFICER THAT THE ORIGINAL COST ESTIMATE, SUBMITTED MAY 9, WAS NOT CHANGED BY THE FACTS SET FORTH IN THE MAY 31-ISSUED ADDENDUM NO. 7, INASMUCH AS THE ADDENDUM WAS NOT CONSIDERED TO HAVE INCREASED THE COSTS OF DOING THE JOB. FURTHER, THE CONTRACTING OFFICER WAS ADVISED BY THE CONTRACT ADMINISTRATION STAFF THAT THE ADDENDUM DID NOT MATERIALLY CHANGE THE SPECIFICATIONS SUCH AS TO AFFECT EITHER THE QUALITY OR QUANTITY OF WORK OR THE COST OF THE PERFORMING THE WORK. IT WAS FURTHER NOTED THAT THE ADDENDUM MERELY ADVISED THAT THOSE PARTICULAR ACCESS ROADS WOULD NOT BE AVAILABLE FOR USE BY THE CONTRACTOR, ALTHOUGH ACCESS WAS STILL READILY AVAILABLE ALONG THE GOVERNMENT'S TRANSMISSION LINE RIGHTS-OF-WAY.

THE PROTESTER HAS SUBMITTED ONLY A BROAD ALLEGATION THAT THE ADDENDUM AFFECTS BOTH THE LIKELIHOOD OF THE WORK BEING COMPLETED IN A TIMELY MANNER AND THE COST OF DOING THE WORK. AS REGARDS THE CONTENTION, COGNIZANT PERSONNEL OF THE CONTRACTING ACTIVITY HAVE STATED THAT THE ADDENDUM HAD NO COST EFFECT ON THE WORK REQUIRED AND THAT THE WORK MAY BE ACCOMPLISHED WITHOUT USE OF THE ACCESS ROADS LISTED BECOMING NECESSARY. THAT POSITION IS FURTHER SUPPORTED BY THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF THE PROTESTER'S BID. THE PROTESTER'S BID WAS RECEIVED BY THE PROCUREMENT ACTIVITY ON MAY 31, THE SAME DATE THAT ADDENDUM NO. 7 WAS ISSUED. THEREFORE, THE PROTESTER'S BID COULD NOT HAVE TAKEN THE ADDENDUM INTO ACCOUNT. THE ACTIVITY RECEIVED THE ACKNOWLEDGED ADDENDUM FROM THE PROTESTER ON JUNE 7. NO CHANGES IN THE ORIGINAL BID PRICE HAD BEEN MADE. SIMILAR CIRCUMSTANCES ATTENDED THE SUBMISSION OF ANOTHER OF THE FOUR BIDS SUBMITTED. AND, WE NOTE THAT THE LEWIS ACKNOWLEDGMENT OF THE ADDENDUM, MAILED PRIOR TO, BUT RECEIVED AFTER, OPENING OF BIDS (LEWIS HAD SUBMITTED ITS BID ON MAY 31), DID NOT CONTAIN A CHANGE IN PRICE.

FINALLY, THE MERE FACT THAT THE ADDENDUM EXTENDED THE BID OPENING DATE DOES NOT AFFECT THE QUALITY, QUANTITY, OR PRICE OF THE PROCUREMENT. SEE B -165177, NOVEMBER 21, 1968, AND 51 COMP. GEN. 408, 410 (1972).

IN VIEW OF THE EVIDENCE INDICATING THAT THE ADDENDUM HAS NO EFFECT ON PRICE VIS-A-VIS THE UNSUPPORTED ALLEGATION BY THE PROTESTER, WE CANNOT AGREE WITH THE GROUNDS ADVANCED THAT THE LEWIS BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE.

ACCORDINGLY, THE PROTEST IS DENIED.