B-156714, MAY 19, 1965

B-156714, MAY 19, 1965

TO THE HONORABLE LAWSON B. KNOTT, JR., ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED MAY 5, 1965, WITH ENCLOSURES, FROM YOUR GENERAL COUNSEL, REQUESTING A DECISION AS TO THE PROPRIETY OF AWARDING A CONTRACT TO CHARLES C. MADDEN CO. ON THE BASIS OF A BID SUBMITTED IN RESPONSE TO AN INVITATION CONTAINING THE SPECIFICATIONS FOR PROJECT NO. C1870-002, COVERING THE FURNISHING OF ALL LABOR, MATERIALS AND PERFORMING ALL WORK REQUIRED FOR BUILDING ALTERATION AND ELEVATOR CONVERSION, UNITED STATES POST OFFICE AND COURTHOUSE, SAN ANTONIO, TEXAS. ON MARCH 5, 1965, AMENDMENT NO. 1 WAS ISSUED AND IT INSTRUCTED PROSPECTIVE BIDDERS TO ADD DRAWING NO. 27-27 TO THE LIST OF DRAWINGS CITED IN PARAGRAPH 2-1 OF THE SPECIAL CONDITIONS ENTITLED "SCOPE OF WORK.'

BIDS WERE OPENED ON MARCH 18, 1965. THREE BIDS WERE RECEIVED IN THE AMOUNTS OF $116,611, $117,621 AND $124,742 FROM CHARLES C. MADDEN CO., THE FORGY CONSTRUCTION COMPANY AND R. L. BURNEY, RESPECTIVELY. OF THE THREE BIDDERS, ONLY THE FORGY CONSTRUCTION COMPANY, HEREINAFTER REFERRED TO AS FORGY, ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 1.

BY LETTER DATED MARCH 8, 1965, FORGY POINTED OUT TO THE CONTRACTING OFFICE THAT DRAWING NO. 27-27 WHICH IT HAD RECEIVED WITH THE INVITATION FOR BIDS WAS NOT LISTED IN THE SEQUENCE OF DRAWINGS SPECIFIED IN PARAGRAPH 2-1 OF THE SPECIAL CONDITIONS. THE COMPANY ALSO POINTED OUT THAT CERTAIN ENUMERATED STANDARD DETAILS ARE DIFFERENT IN THE SPECIAL CONDITIONS AND SPECIFICATIONS AND IT REQUESTED CLARIFICATION OF THE ENUMERATED ITEMS. LETTER DATED MARCH 16, 1965, THE CONTRACTING OFFICE ADVISED FORGY OF THE STANDARD DETAILS TO BE FOLLOWED BY THE COMPANY.

IN A LETTER DATED MARCH 24, 1965, TO THE CONTRACTING OFFICE, FORGY CONTENDED THAT AN AWARD SHOULD NOT BE MADE TO CHARLES C. MADDEN CO., HEREINAFTER REFERRED TO AS MADDEN, SINCE THE COMPANY'S FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT PLACED IT IN A POSITION OF HAVING AN OPTION TO ACCEPT OR REJECT AWARD OF THE CONTRACT AND OF BEING ABLE TO DEMAND ADDITIONAL COMPENSATION FOR PERFORMANCE OF THE WORK SHOWN ON DRAWING NO. 27-27. ON MARCH 31, 1965, THE CONTRACTING OFFICER REPLIED THAT, IN HIS OPINION, MADDEN'S FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT WAS A MINOR INFORMALITY WHICH COULD BE WAIVED INASMUCH AS THE DRAWING ITSELF HAD BEEN INCLUDED IN THE SPECIFICATIONS FURNISHED MADDEN. AFTER A FURTHER EXCHANGE OF CORRESPONDENCE, FORGY PROTESTED BY LETTER DATED APRIL 7, 1965, AGAINST THE AWARD OF THE CONTRACT TO ANY BIDDER OTHER THAN ITSELF AND THE COMPANY REQUESTED THAT ITS PROTEST BE FORWARDED TO OUR OFFICE FOR CONSIDERATION.

IN REGARD TO THE EFFECT OF AMENDMENT NO. 1, THE CHIEF, DESIGN AND CONSTRUCTION DIVISION, PUBLIC BUILDINGS SERVICE, REGION 7, STATES IN A MEMORANDUM DATED APRIL 15, 1965, TO REGIONAL COUNSEL, AS FOLLOWS:

"ENCLOSED ARE DOCUMENTS, TOGETHER WITH AN INDEX OF ENCLOSURES, IN CONNECTION WITH FORGY CONSTRUCTION COMPANY'S PROTEST OF THE CONTRACTING OFFICER'S DECISION TO WAIVE CHARLES C. MADDEN COMPANY'S FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1 TO THE SPECIFICATION ON THE SUBJECT PROJECT.

"IN PARAGRAPH 2-1 (SCOPE OF WORK) OF SECTION 2 (SPECIAL CONDITIONS) OF THE SPECIFICATION FOR THE REFERENCED PROJECT, EACH DRAWING NUMBER FROM 27- 23 TO 27-30 WAS LISTED EXCEPTING DRAWING NUMBER 27-27. TO CORRECT THIS OMISSION, AMENDMENT NO. 1 WAS ISSUED TO INCLUDE DRAWING NO. 27-27 WITH THOSE LISTED IN PARAGRAPH 2-1. DRAWING NO. 27-27 WAS INCLUDED WITH THE OTHER DRAWINGS MENTIONED IN PARAGRAPH 2-1 THAT WERE FURNISHED TO BIDDERS WITH THE SPECIFICATIONS.

"DRAWING 27-27 SHOWS A PARTIAL ATTIC FLOOR FRAMING PLAN, A PLAN OF FRAMING BETWEEN ROOF AND MACHINE FLOOR, AND SECTIONS M-7 TO M-11 INCLUSIVE. THESE SECTIONS SHOW SIZES AND LOCATIONS OF CONCRETE MEMBERS AND REINFORCING BAR SIZES, AND SIZES AND LOCATIONS OF STEEL BEAMS.

"DRAWING 27-28 REFERS TO DRAWING 27-27 FOR SECTION M-7 TO M-11.

"DRAWING 27-29 REFERS TO DRAWING 27-27 PLANS FOR LOCATING WHERE SECTIONS S-1 TO S-5 (DETAILED ON 27-29) ARE CUT THROUGH THE STRUCTURE.

"WITHOUT DRAWING 27-27, A BIDDER COULD ONLY GUESS THE SIZE AND REINFORCING REQUIRED FOR BEAMS SHOWN IN SECTIONS M-7 TO M-11 AND HE WOULD NOT KNOW WHERE SECTIONS S-1 TO S-5 WERE LOCATED.

"SINCE IT IS NECESSARY TO HAVE DRAWING 27-27 TO OBTAIN NEEDED INFORMATION FOR BIDDING AND SINCE THE DRAWING WAS FURNISHED WITH THE OTHER DRAWINGS TO EACH BIDDER, AND SINCE THE ISSUANCE OF THE AMENDMENT NO. 1 SIMPLY ADDED THE DRAWING NUMBER 27-27 TO THE OTHERS LISTED IN PARAGRAPH 2-1, IT APPEARS THAT ISSUANCE OF AMENDMENT NO. 1 WAS A MINOR INFORMALITY WHICH COULD BE WAIVED UNDER PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22).'

THE GENERAL COUNSEL RECOMMENDS IN HIS LETTER OF MAY 5, 1965, THAT THE FAILURE OF MADDEN TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 BE CONSIDERED AS A MINOR INFORMALITY AND WAIVED FOR REASONS AS FOLLOWS:

"IT IS OUR POSITION THAT THE CONTRACTING OFFICER CORRECTLY TREATED THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE AMENDMENT AS A MINOR INFORMALITY, INASMUCH AS THE DRAWING ITSELF WAS ISSUED WITH THE INVITATION, AND ONLY THE LISTING OF THE DRAWINGS WAS CORRECTED BY THE AMENDMENT. THAT IS, THE ADDITION OF DRAWING NO. 27-27 TO THE LIST OF DRAWINGS ENUMERATED IN "SCOPE OF WORK" SHOULD HAVE BEEN OF NO EFFECT IN THE PREPARATION OF THE BID SINCE THE DRAWING ITSELF HAD BEEN INCLUDED IN THE INVITATION AND SINCE DRAWING NOS. 27-28 AND 27-29 BOTH REFERRED THE BIDDER TO DRAWING NO. 27-27 FOR AMPLIFYING OR CLARIFYING DATA, IN SUCH A WAY THAT THE BID COULD HAVE BEEN PREPARED ONLY AFTER REFERENCE TO THE LATTER DRAWING. THE ADDITION OF THIS DRAWING NUMBER TO THE LIST OF DRAWINGS IN NO WAY MODIFIED THE REQUIREMENTS OF THE CONTRACT SO AS TO AFFECT PRICE, QUANTITY OR QUALITY. AND FPR 1- 2.405 WHICH PERMITS WAIVER OF A MINOR INFORMALITY OR IRREGULARITY WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE, CITES AS ONE OF THE EXAMPLES OF IRREGULARITIES WHICH MAY BE WAIVED, THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT WHEN THE AMENDMENT INVOLVES "ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.'"

WE STATED IN 40 COMP. GEN. 48 THAT THE BASIS FOR THE GENERAL RULE REQUIRING ACKNOWLEDGMENT OF AN ADDENDUM IS TO PREVENT A BIDDER FROM HAVING AN OPTION TO DECIDE AFTER BID OPENING WHETHER TO BECOME ELIGIBLE FOR AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT A MATERIAL ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. THIS CASE, IT IS OUR OPINION THAT MADDEN DOES NOT HAVE THAT OPTION. THAT COMPANY'S BID WAS AN OFFER TO PERFORM ALL WORK PRECISELY IN ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES AND DRAWINGS. IT IS REPORTED THAT IN ORDER TO HAVE MADE A PROPER BID ON THE PROJECT IT WAS ESSENTIAL THAT DRAWING NO. 27-27 BE EXAMINED PRIOR TO SUBMITTING A BID AND THAT REFERENCE TO SUCH DRAWING WAS MADE IN DRAWINGS NOS. 27-28 AND 27-29. SINCE DRAWING NO. 27-27 WAS PART OF THE DRAWINGS WHICH ACCOMPANIED THE INVITATION FOR BIDS AND SINCE POSSESSION OF SUCH DRAWING WAS NECESSARY FOR THE COMPUTATION OF A BID PRICE, IT IS NOT APPARENT HOW MADDEN COULD CLAIM IT DID NOT RECEIVE SUCH DRAWING.

UNDER PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS THE GOVERNMENT RESERVED THE RIGHT TO WAIVE ANY INFORMALITY IN BIDS RECEIVED. THIS RESERVATION OF RIGHT IS CONSISTENT WITH DECISIONS OF OUR OFFICE TO THE EFFECT THAT VARIANCES FROM THE REQUIREMENTS OF AN INVITATION FOR BIDS MAY BE WAIVED, PROVIDED SUCH WAIVER WOULD NOT WORK AN INJUSTICE ON OTHER BIDDERS, AND THE IRREGULARITIES OR DEFECTS IN BID DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE REQUIRED SUPPLIES OR SERVICES. OUR OFFICE HAS ALSO HELD THAT IT IS PROPER THAT THE OFFICIALS OF THE CONTRACTING AGENCY SHOULD HAVE A REASONABLE DEGREE OF DISCRETION IN DETERMINING WHETHER A VARIATION IN BID IS MINOR OR NOT. SEE 40 COMP. GEN. 458.

WHILE THE GENERAL RULE IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE TO ACKNOWLEDGE THE AMENDMENT CANNOT BE WAIVED, IT HAS NOT BEEN APPLIED INDISCRIMINATELY BY THIS OFFICE TO PREVENT WAIVER IN ALL CASES INVOLVING FAILURE TO ACKNOWLEDGE ADDENDA AFFECTING THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, AND WE DO NOT BELIEVE THAT IT HAS APPLICATION TO THE CIRCUMSTANCES PRESENTED IN THE IMMEDIATE CASE. RATHER, WE CONCUR IN THE RECOMMENDATION OF THE GENERAL COUNSEL FOR THE REASONS STATED IN THE LETTER OF MAY 5, 1965, WHICH HAVE BEEN QUOTED ABOVE. SEE 41 COMP. GEN. 550.

ACCORDINGLY, WE FIND NO BASIS FOR OBJECTING TO WAIVING AS AN INFORMALITY THE FAILURE OF MADDEN ..END :