B-228516, Jan 21, 1988, 67 Comp.Gen. 204
B-228516: Jan 21, 1988
PROCUREMENT - Sealed Bidding - Invitations for Bids - Amendments - Notification DIGEST: A bidder bears the risk of not receiving invitation for bids amendments unless it is shown that the contracting agency made a deliberate effort to exclude the bidder from competing. Was for the replacement of steam turbine drives with electric motor drives. Southern's protest is based upon alleged nonreceipt of amendment No. 0003 to the IFB. A series of three amendments to the solicitation were issued by the Army to all offerors on the bidders list. 15 minutes before bids were opened. Been received because the firm does not have a telex machine. He states that if a firm does not have a telex or facsimile machine.
B-228516, Jan 21, 1988, 67 Comp.Gen. 204
PROCUREMENT - Sealed Bidding - Invitations for Bids - Amendments - Notification DIGEST: A bidder bears the risk of not receiving invitation for bids amendments unless it is shown that the contracting agency made a deliberate effort to exclude the bidder from competing, or the agency inadvertently failed to furnish the amendment where the bidder availed itself of every reasonable opportunity to obtain the amendment.
Southern Technologies, Inc.:
Southern Technologies, Inc., protests the award of contract No. DAAA22-87 -C-0245 to the second low bidder, Frank Lill & Sons, Inc., in response to invitation for bids (IFB) No. DAAA22-87-B-0140 issued by the Watervliet Arsenal, United States Army. The IFB, issued on April 20, 1987, was for the replacement of steam turbine drives with electric motor drives, forced draft fans, and the installation of an oil burner. Southern's protest is based upon alleged nonreceipt of amendment No. 0003 to the IFB, by Southern and several other bidders. Southern asserts that "the government did not make a conscious and deliberate effort to insure that the majority of bidders received that amendment and therefore restricted competition." We deny the protest.
A series of three amendments to the solicitation were issued by the Army to all offerors on the bidders list. Amendment No. 0001, dated May 5, 1987, incorporated a new wage determination. Amendment No. 0002, dated June 1, 1987, extended the bid opening to June 22, 1987, pending a technical review of the specifications to remove restrictive portions as claimed by another firm. Amendment No. 0003, dated July 9, 1987, incorporated changes to the specifications based on the above review and extended the bid opening date to July 24, 1987. In addition, amendment No. 0003 extended the performance time on this project from 90 to 180 calendar days based on a request from Southern dated May 13, 1987. Southern, the low bidder at $259,000, acknowledged only amendment No. 0002. Frank Lill & Sons, Inc., the second low bidder at $278,569, acknowledged all three amendments.
On the day of bid opening, July 24, 1987, 15 minutes before bids were opened, the president of Southern called the contracting officer to request a copy of amendment No. 0003. Southern indicated that it had not received the third amendment by mail, nor had the amendment which the agency also sent by telex (dated June 18, 1987), been received because the firm does not have a telex machine. In the contracting officer's report, he states that if a firm does not have a telex or facsimile machine, the message is sent to the Commercial Refile Center of the Army which calls the firm and follows up with a mailgram. If a message is undeliverable, the originating office is notified. No such notification was received by the contracting officer in this case.
The president of Southern also stated in his July 24, 1987, telephone conversation with the contracting officer that he had just received amendment No. 0001, although it had been issued May 5, 1987. However, amendment No. 0001 did not make any changes to the wage determination which were material to the solicitation, and thus failure to acknowledge it would not have provided a basis for rejecting the bid.
The contracting officer advised Southern on that date (July 24) that it was too late to mail another copy of amendment No. 0003 and that bid opening would proceed as scheduled. Southern filed a protest with the Army on September 30, 1987.
The Army maintains that Southern was mailed a copy of amendment No. 0003 in the same manner as it furnished other documents which the firm did receive, including amendment Nos. 0001 (which Southern claims it received late) and 0002. From the record, it appears that three of the four other bidders received amendment No. 0003 (Frank Lill & Sons, Inc.; American Boiler, Tank and Welding Co.; and Praught Construction Corp.), and the former two firms acknowledged all three amendments in their bids. The remaining bidder, Combustion Equipment, was sent the three amendments by mail to the same address as was the solicitation. Amendment No. 0003 was returned as undeliverable due to insufficient address; however, the solicitation and the other two amendments mailed to Combustion Equipment were not returned.
It is well-established that a bidder bears the risk of not receiving IFB amendments unless it is shown that the contracting agency made a deliberate effort to exclude the bidder from competing, TCA Reservations, Inc., B-218615, Aug. 13, 1985, 85-2 CPD Para. 163, or the agency failed to furnish the amendment inadvertently where the bidder availed itself of every reasonable opportunity to obtain the amendment. Catamount Construction, Inc., B-225498, Apr. 3, 1987, 87-1 CPD Sec. 374. We find no evidence of an attempt by the Army to deliberately exclude certain bidders from the competition. It appears that three of the five bidders that responded to the IFB actually received the third amendment, two of the five acknowledged all three amendments, and reasonable prices and adequate competition were obtained in the subject procurement. Moreover, other than the telephone call to the contracting officer just prior to bid opening, there is nothing to suggest that the contracting officer had any notice that Southern had not received amendment No. 0003. In summary, we believe that the record establishes that the Army issued and mailed amendment No. 0003 in sufficient time to allow all offerors to respond, and therefore met its obligation. See Maintenance Pace Setters, Inc., B-212757, Jan. 23, 1984, 84-1 CPD Para. 98.
Southern nonetheless asserts that even though the amendment may have been delivered to the Postal Service, it nonetheless remained in the possession of the government because the Postal Service failed to deliver it. However, the "government" for this purpose is not the Postal Service; rather the word "government" refers only to the contracting activity. Cf. Minority Business Enterprises, Inc., B-211836, May 31, 1983, 83-1 CPD Para. 583.
Lastly, we note that Southern does not dispute that its failure to acknowledge amendment No. 0003 was proper cause for rejection of its bid. A bidder's failure to acknowledge a material IFB amendment renders the bid nonresponsive, since absent such an acknowledgment the government's acceptance of the bid would not legally obligate the bidder to meet the government's needs as identified in the amendment. Tri-S Inc., B-226793.2, June 26, 1987, 87-1 CPD Para. 634. In this case, the amendment at issue was material because it amended the specifications and doubled the performance period of the project from 90 calendar days to 180 calendar days.
The protest is denied.