B-225260.2, FEB 25, 1987

B-225260.2, FEB 25, 1987

PROCUREMENT - SEALED BIDDING - INVITATIONS FOR BIDS - AMENDMENTS - ACKNOWLEDGEMENT - RESPONSIVENESS PROCUREMENT - SEALED BIDDING - BIDS - RESPONSIVENESS - ACCEPTANCE TIME PERIODS - DEVIATION DIGEST: WHERE BIDDER INSERTED 60 DAYS AS ITS BID ACCEPTANCE PERIOD IN THE ORIGINAL BID FORM AND ALSO ACKNOWLEDGE AN AMENDMENT THAT CHANGED THE IFB MINIMUM ACCEPTANCE PERIOD FROM 60 DAYS TO 90 DAYS, THE BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE BECAUSE BIDDER'S BLANKET ACKNOWLEDGMENT OF THE AMENDMENT INDICATED ITS ACCEPTANCE OF THE LONGER BID ACCEPTANCE PERIOD.

ALASKA MECHANICAL, INC.:

ALASKA MECHANICAL, INC. (AMI), PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE BY THE UNITED STATES COAST GUARD UNDER INVITATION FOR BIDS NO. DTCG35-86-B-60040 FOR REPAIR WORK. AMI'S LOW BID WAS REJECTED BECAUSE OF AN AMBIGUITY IN THE BID ACCEPTANCE PERIOD.

WE SUSTAIN THE PROTEST.

THE IFB WAS ISSUED ON AUGUST 20, 1986, WITH A MINIMUM BID ACCEPTANCE PERIOD OF 60 CALENDAR DAYS. AMENDMENT NO. 0003 TO THE IFB CHANGED, AMONG OTHER THINGS, THE MINIMUM BID ACCEPTANCE PERIOD TO 90 CALENDAR DAYS. ALTHOUGH AMI ACKNOWLEDGED AMENDMENT NO. 0003, IT ALSO INSERTED 60 CALENDAR DAYS AS THE ACCEPTANCE PERIOD IN ITS BID, WHICH RESULTED IN THE COAST GUARD REJECTING THE BID AS NONRESPONSIVE FOR CONTAINING AN AMBIGUITY.

AMI CONTENDS THAT IT DEMONSTRATED ITS INTENT TO COMPLY WITH THE 90 DAY MINIMUM ACCEPTANCE PERIOD BY ACKNOWLEDGING THE AMENDMENT, AND THAT ITS BID SHOULD BE CONSIDERED RESPONSIVE IN ACCORDANCE WITH OUR DECISION IN WALSKY CONSTRUCTION CO., ET AL., B-216571 ET AL., MAY 17, 1985, 85-1 CPD PARA. 562. IN THAT CASE, THE AGENCY HAD ERRONEOUSLY INSERTED THE NUMBER 10 IN THE SPACE PROVIDED FOR BIDDERS TO INSERT THE ACCEPTANCE PERIOD OF THEIR BIDS, WHICH CONFLICTED WITH A PROVISION THAT STATED THAT THE MINIMUM ACCEPTANCE PERIOD WAS 30 DAYS. THE AGENCY AMENDED THE SOLICITATION BY OMITTING THE ERROR AND CHANGING THE MINIMUM ACCEPTANCE PERIOD TO 60 DAYS. THE PROTESTER ALLEGED THAT TWO BIDDERS WERE NONRESPONSIVE BECAUSE THEY HAD ACKNOWLEDGED THE AMENDMENT WITHOUT SUBMITTING REVISED BID FORMS. AFTER RECOGNIZING THAT IT COULD BE ARGUED THAT THESE BIDS ON UNAMENDED BID FORMS WERE OFFERING THE 10-DAY PERIOD, WE HELD THAT THE BIDS WERE RESPONSIVE BECAUSE IT WAS MORE REASONABLE TO ASSUME THAT, SINCE THE BIDDERS HAD ACKNOWLEDGED THE AMENDMENT, THEY INTENDED TO COMPLY WITH THE 60-DAY BID ACCEPTANCE PERIOD REQUIREMENT AND THAT THE USE OF THE UNAMENDED FORM WAS MERE OVERSIGHT.

HERE, THERE WERE NO NEW BID FORMS ISSUED BUT AMI ACKNOWLEDGED AMENDMENT NO. 0003 WITHOUT TAKING EXCEPTION TO ANY OF ITS TERMS. MOREOVER, AMI'S INSERTION OF 60 DAYS IN THE ORIGINAL BID FORM SHOWS COMPLIANCE WITH THE BID ACCEPTANCE PERIOD THEN DESIRED BY THE COAST GUARD. BY ACKNOWLEDGING AMENDMENT NO. 0003, WE FIND AMI INDICATED ITS ACCEPTANCE OF THE NEW TERMS CONTAINED THEREIN INCLUDING THE NEW 90-DAY BID ACCEPTANCE PERIOD. WALSKY CONSTRUCTION CO., SUPRA.

ACCORDINGLY, WE SUSTAIN THE PROTEST AND RECOMMEND AWARD TO AMI, IF OTHERWISE PROPER.