B-182418, JAN 30, 1975

B-182418, JAN 30, 1975

1. LOW BID WHICH FAILED TO ACKNOWLEDGE AMENDMENT TO INVITATION FOR BIDS WHICH MADE REVISIONS AND CLARIFICATIONS TO SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE SINCE CONTENTS OF AMENDMENT DIRECTLY AFFECTED CONTRACT PRICE AND QUALITY AND IS, THEREFORE, MATERIAL AND NOT SUBJECT TO WAIVER. FURTHERMORE, SINCE AGENCY STATES THAT COPY OF AMENDMENT WAS TIMELY MAILED TO CORRECTED ADDRESS, PROTESTING BIDDER'S FAILURE TO RECEIVE AND ACKNOWLEDGE AMENDMENT CANNOT BE VIEWED AS RESULT OF CONSCIOUS AND DELIBERATE EFFORT TO EXCLUDE BIDDER FROM COMPETITION. 2. WHERE PROTESTER WAS ORALLY ADVISED OF BASIS OF REJECTION OF BID ON SEPTEMBER 27, 1974, AND WAS TOLD AT THAT TIME THAT LETTER DETAILING REASON FOR REJECTION WOULD BE FORTHCOMING WITHIN 10 DAYS, WHICH IS NOT DENIED BY CONTRACTING AGENCY, PROTEST FILED OCTOBER 16, 1974, AFTER WAITING 10 DAYS AND PERIOD FOR RECEIPT OF LETTER IN MAIL, IS NOT CONSIDERED UNTIMELY.

TOROTRON CORPORATION:

BY INVITATION FOR BIDS (IFB) NO. DAAA09-74-B-7482, ISSUED ON MAY 14, 1974, THE UNITED STATES ARMY ARMAMENT COMMAND (ARMCOM), REQUESTED BIDS FOR A 120-VOLT POWER SUPPLY ASSEMBLY. THE IFB WAS DISTRIBUTED TO 41 PROSPECTIVE OFFERORS, INCLUDING THE PROTESTER - TOROTRON CORPORATION (TOROTRON). ON MAY 24, 1974, THE IFB WAS MODIFIED BY AMENDMENT 0001, WHICH FORWARDED TECHNICAL DATA OMITTED FROM THE ORIGINAL PACKAGE, MADE REVISIONS AND CLARIFICATIONS TO SEVERAL OF THE DRAWINGS AND EXTENDED THE BID OPENING DATE TO JULY 8, 1974. DUE TO THE LATE RECEIPT OF THE TECHNICAL DATA INVOLVED IN THE AMENDMENT, THE CONTRACTING OFFICER SENT A BOOK MESSAGE TO THOSE FIRMS THEN ON THE BIDDERS MAILING LIST ADVISING OF THE IMPENDING AMENDMENT.

THE EIGHTH POSSIBLE SOURCE ON THE MAILING LIST WAS TOROTRON. ALTHOUGH ORIGINALLY INCORRECTLY LISTED AS BEING LOCATED AT 225 WASHINGTON STREET, MOUNT VERNON, NEW YORK, THIS ADDRESS WAS CORRECTED AT THE TIME OF THE AMENDMENT BEING ISSUED TO 255 WASHINGTON STREET. THE GOVERNMENT'S RECORDS INDICATE THAT BOTH THE BOOK MESSAGE AND AMENDMENT 0001 TO THE IFB WERE SENT TO TOROTRON AT 255 WASHINGTON STREET, MOUNT VERNON, NEW YORK.

ELEVEN BIDS WERE RECEIVED AND OPENED ON JULY 8, 1974. THE APPARENT LOW BIDDER, CENTROID INC., WAS DETERMINED TO BE NONRESPONSIBLE. THE SECOND LOW BIDDER, TOROTRON, FAILED TO RETURN AMENDMENT 0001 TO THE IFB AND WAS DECLARED NONRESPONSIVE. ON SEPTEMBER 10, 1974, CONTRACT NO. DAAA09-75-C- 6249 WAS AWARDED TO TECHNICAL SYSTEMS, INC. (TSI), THE NEXT LOW, RESPONSIVE AND RESPONSIBLE BIDDER.

TOROTRON CONTENDS THAT ITS BID, BEING LOWER THAN TSI'S SHOULD NOT HAVE BEEN REJECTED SINCE IT DID NOT RECEIVE THE AMENDMENT, AND, THEREFORE, DID NOT HAVE THE OPPORTUNITY TO ACKNOWLEDGE IT. MOREOVER, TOROTRON CONTENDS THAT THE AMENDMENT WAS TRIVIAL IN NATURE AND THE FAILURE TO ACKNOWLEDGE THE AMENDMENT COULD HAVE BEEN WAIVED UNDER THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2 405(IV)(B) (1974 ED.).

BEFORE DISCUSSING THE MERITS OF THIS PROTEST, THE TIMELINESS OF ITS FILING MUST BE RESOLVED. IT IS ARMCOM'S POSITION THAT TOROTRON WAS ORALLY ADVISED OF THE BASIS FOR ITS PROTEST ON SEPTEMBER 27, 1974. SINCE TOROTRON DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL OCTOBER 16, 1974, MORE THAN 5 DAYS AFTER THE BASIS FOR PROTEST WAS KNOWN, ARMCOM BELIEVES THAT OUR OFFICE SHOULD NOT CONSIDER THE MERITS OF THIS PROTEST. TOROTRON, HOWEVER, CLAIMS THAT IT WAS ADVISED THAT A LETTER DETAILING THE BASIS FOR ITS REJECTION WOULD BE FORTHCOMING WITHIN 10 DAYS FROM THE SEPTEMBER 27, 1974, TELEPHONE CALL. WE DO NOT UNDERSTAND TOROTRON TO BE CLAIMING THAT THE LETTER WAS TO BE RECEIVED IN 10 DAYS; ONLY THAT IT WAS TO BE ISSUED IN THAT TIME. HAVING RECEIVED NO LETTER, IT THEN PROTESTED TO OUR OFFICE. TOROTRON'S CLAIM AS TO THE UNDERSTANDING OF THE SEPTEMBER 27, 1974, TELEPHONE CONVERSATION IS NOT DENIED. ALLOWING A WAITING PERIOD FOR RECEIPT OF THE LETTER THROUGH THE MAIL, OUR OFFICE IS UNABLE TO CONCLUDE THAT TOROTRON'S OCTOBER 16, 1974, FILING WAS UNTIMELY. THEREFORE, THE ISSUES PROTESTED WILL BE RESOLVED ON THEIR MERITS.

GENERALLY, IF A BIDDER DOES NOT RECEIVE AND ACKNOWLEDGE A MATERIAL AMENDMENT TO AN INVITATION AND SUCH FAILURE IS NOT THE RESULT OF A CONSCIOUS AND DELIBERATE EFFORT TO EXCLUDE THE BIDDER FROM PARTICIPATING IN THE COMPETITION, THE BID MUST BE REJECTED AS NONRESPONSIVE. 40 COMP. GEN. 126, 128 (1960); B-179119, OCTOBER 1, 1973. SINCE WE ARE ADVISED BY THE PROCURING ACTIVITY THAT THE BOOK MESSAGE AND COPIES OF THE AMENDMENT WERE MAILED ON THE DATE OF ISSUANCE TO ALL FIRMS THAT HAD RECEIVED COPIES OF THE INVITATION, AND THAT TOROTRON'S ADDRESS HAD BEEN CORRECTED PRIOR TO THE ISSUANCE OF THIS AMENDMENT, WE HAVE NO REASON TO BELIEVE THAT THE FAILURE OF TOROTRON TO RECEIVE THIS AMENDMENT WAS THE RESULT OF A DELIBERATE EFFORT ON THE PART OF THE CONTRACTING AGENCY TO EXCLUDE IT FROM COMPETITION. MATTER OF HYDE & NORRIS/T/A TRAVELER'S INN MOTOR LODGE, B- 180360, MAY 20, 1974.

MOREOVER, THE CONTRACTING OFFICER HAS ADVISED THAT THE AMENDMENT IN QUESTION IS OF A MATERIAL NATURE. ALTHOUGH STATED AS "MINOR REVISIONS AND CLARIFICATIONS," THE PROCURING ACTIVITY IS OF THE OPINION THAT:

"*** THE AMENDMENT TO SOLICITATION DAAA09-74-B-7482, IN ESSENCE, CHANGED FINISH REQUIREMENTS, CAPACITATORS, THE TYPE OF PLASTIC SHEETS TO BE USED, DIMENSIONS, AND WIRE TYPES. INDIVIDUALLY, EACH CHANGE MIGHT BE SMALL, BUT CUMULATIVELY THE CHANGES WOULD INVOLVE THE PRICE OF THE ITEM, ITS ULTIMATE CONFIGURATION AND ITS QUALITY. ***"

THE GENERAL RULE AS TO THE EFFECT OF A BIDDER'S FAILURE TO ACKNOWLEDGE AN AMENDMENT TO AN INVITATION FOR BIDS IS THAT WHEN THE AMENDMENT AFFECTS, IN OTHER THAN A "TRIVIAL OR NEGLIGIBLE" MANNER, THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT, THE BIDDER'S FAILURE TO ACKNOWLEDGE THE AMENDMENT IN COMPLIANCE WITH THE TERMS OF THE INVITATION OR AMENDMENT CANNOT BE WAIVED. SEE ASPR SEC. 2-405 (1974 ED.). THE BASIS FOR THIS RULE IS THE PRINCIPLE THAT THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION, AS AMENDED, WOULD BE PREJUDICIAL TO OTHER BIDDERS. CLARIFICATION OF THE BID AFTER OPENING MAY NOT BE PERMITTED BECAUSE THE BIDDER IN SUCH CIRCUMSTANCES WOULD HAVE THE OPTION TO DECIDE TO BECOME ELIGIBLE BY FURNISHING EXTRANEOUS EVIDENCE THAT THE AMENDMENT HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. COMP. GEN. 550 (1962).

ACCORDINGLY, WE CONCLUDE THAT THE REJECTION OF TOROTRON'S BID WAS PROPER AND THE PROTEST IS THEREFORE DENIED.