B-161896, SEP. 1, 1967

B-161896, SEP. 1, 1967

BIDS - AMENDMENT ACKNOWLEDGEMENT, ETC. DECISION TO BORG-WARNER CONTROLS PROTESTING REJECTION OF BID FOR CIRCUIT BREAKER TESTER BY NASA. BIDDER WHO FAILED TO ACKNOWLEDGE AMENDMENT THAT INTRODUCED A MATERIAL REQUIREMENT AND CHANGED EVALUATION PROVISION BECAUSE IT WAS NEVER RECEIVED ALTHOUGH PROCURING AGENCY RECORDS INDICATE THAT AMENDMENT WAS MAILED HAD BID PROPERLY REJECTED AS NONRESPONSIVE.

TO BORG-WARNER CONTROLS:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. CC-585-7, ISSUED BY THE JOHN F. KENNEDY SPACE CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, KENNEDY SPACE CENTER, FLORIDA.

THE INVITATION DATED MAY 5, 1967, SOLICITED 15 FIRMS FOR BIDS ON A CIRCUIT BREAKER TESTER AND CONNECTOR ACCESSORIES EQUAL IN MATERIAL RESPECTS TO MODEL CB-225-66 MANUFACTURED AND MARKETED BY MULTI-AMP CORPORATION UNDER A BRAND-NAME OR EQUAL PURCHASE DESCRIPTION WHEREIN SALIENT CHARACTERISTICS OF THE REFERENCED PRODUCT WERE IDENTIFIED. THEREAFTER, BY AMENDMENT NO. 1 TO THE INVITATION DATED MAY 17, 1967, THE BID OPENING DATE WAS EXTENDED TO 1 P.M., E.D.S.T., JUNE 6, 1967. SUCH AMENDMENT ALSO ADDED A REQUIREMENT FOR AN ADDITIONAL "STAB SET" AND CHANGED THE OPERATIONAL REQUIREMENTS OF THE LISTED SALIENT CHARACTERISTICS APPEARING AS NUMBERS (3) AND (7) ON PAGE 4 OF THE INVITATION. BIDS WERE OPENED ON JUNE 6, 1967, AND TWO BIDS WERE RECEIVED AS FOLLOWS:

BORG-WARNER CONTROLS $ 6,660.00

MULTI-AMP CORPORATION 11,680.50 IT IS REPORTED THAT YOUR BID WAS CONSIDERED TO BE NONRESPONSIVE TO THE REQUIREMENTS OF THE PROCUREMENT BECAUSE YOU FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 TO THE INVITATION PRIOR TO BID OPENING AND SINCE SUCH AMENDMENT HAD INTRODUCED A MATERIAL REQUIREMENT FOR AN ADDITIONAL "STAB SET" AS WELL AS CHANGED SALIENT CHARACTERISTICS. AFTER ADMINISTRATIVE EVALUATION OF THE MULTI-AMP BID (INCLUDING AN ADMINISTRATIVE PRICE ANALYSIS), AWARD OF CONTRACT NO. NAS10-4978 WAS MADE TO MULTI-AMP ON JUNE 16, 1967. ON REVIEW OF THE RECORD BEFORE US, WE MUST CONCLUDE THAT YOUR FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1 RENDERED YOUR BID NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS OF THE INVITATION.

YOU CONTEND, HOWEVER, THAT YOU NEVER RECEIVED THE AMENDMENT NO. 1 IN TIME TO ACKNOWLEDGE IT BEFORE BID OPENING, AND YOU ALLEGE THAT YOU DID NOT RECEIVE SUCH AMENDMENT PRIOR TO BID OPENING BECAUSE OF A "CLERICAL ERROR WHICH MUST HAVE OCCURRED AT KENNEDY SPACE CENTER, FLORIDA.' IN THIS RESPECT, KENNEDY SPACE CENTER RECORDS INDICATE THAT THE INVITATION AND AMENDMENT NO. 1 WERE MAILED TO YOUR FIRM ON MAY 5 AND 16, 1967, RESPECTIVELY, AT THE FOLLOWING ADDRESS:

TRANS-REX EQUIPMENT DEPARTMENT

BORG-WARNER CONTROLS

DIV. OF BORG-WARNER CORP.

825 NASH STREET

EL SEGUNDO, CALIFORNIA 90245

AMENDMENT NO. 1 PROVIDED ON ITS FACE THAT: "BIDDERS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SET FOR BID OPENING, BY ONE OF THE FOLLOWING METHODS:

A. BY SIGNING AND RETURNING 3 COPIES OF THIS AMENDMENT.

B. BY A NOTATION ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE BID SUBMITTED.

C. BY SEPARATE LETTER OR TELEGRAM WHICH INCLUDES A REFERENCE TO THE IFB NUMBER AND AMENDMENT NUMBER. "FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE FIXED FOR OPENING OF BIDS MAY RESULT IN THE REJECTION OF YOUR BID. IF, BY VIRTUE OF THIS AMENDMENT, IT IS DESIRED TO MODIFY A BID ALREADY SUBMITTED, SUCH MODIFICATION MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THIS AMENDMENT AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED ABOVE.'

THE CONTRACTING OFFICER REPORTED THAT THE COST OF THE ADDITIONAL "STAB SET" REQUIRED BY AMENDMENT NO. 1 WAS IN EXCESS OF $500, AND THAT WHILE YOU MAY HAVE REQUESTED THE BUYER IN THIS PROCUREMENT TO EXTEND BID OPENING TIME, SUCH REQUEST WAS CONVEYED BY A TELEPHONE CONVERSATION WHICH TOOK PLACE ON JUNE 6, 1967, ONLY 15 MINUTES BEFORE THE BID OPENING TIME. ARE ADVISED THAT THE TIME REMAINING BEFORE BID OPENING WAS NOT ADEQUATE TO ALLOW THE CONTRACTING OFFICER TO CONTACT THE OTHER SOLICITED BIDDERS.

THE ADDITIONAL OBLIGATION IMPOSED ON BIDDERS BY AMENDMENT NO. 1, AFFECTED PRICE AS WELL AS QUANTITY AND, AS SUCH, WAS A MATERIAL PART OF THE INVITATION. A BIDDER'S FAILURE TO ACKNOWLEDGE AND ASSENT TO THE TERMS OF SUCH AN AMENDMENT PRIOR TO THE TIME SCHEDULED FOR OPENING OF BIDS MAY NOT BE WAIVED AS A MERE INFORMALITY OR IRREGULARITY IN THE BID, SINCE IT IS AN ESTABLISHED RULE THAT A CONTRACT AWARDED TO THE SUCCESSFUL BIDDER MUST BE THE SAME CONTRACT OFFERED TO ALL BIDDERS. IN SUCH A CASE, THE BID MUST BE REJECTED AS BEING NONRESPONSIVE TO THE MATERIAL AND ESSENTIAL REQUIREMENTS OF THE INVITATION. SEE 37 COMP. GEN. 785 AND 40 ID. 126. A BID SUBMITTED IN RESPONSE TO AN INVITATION IS AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. IF AN AMENDMENT WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS NOT ACKNOWLEDGED BY THE BIDDER PRIOR TO BID OPENING, HIS OFFER IS FOR SOMETHING OTHER THAN THE PERFORMANCE SOLICITED BY THE TERMS OF THE INVITATION, INCLUDING ANY AMENDMENTS. TO PERMIT HIM TO PERFORM IN ACCORDANCE WITH THE INVITATION WITHOUT THE UNACKNOWLEDGED AMENDMENT WOULD BE CONTRARY TO THE STATUTES GOVERNING ADVERTISED PROCUREMENTS. UNITED STATES V. ELLICOTT, 223 U.S. 524. ON THE OTHER HAND, TO PERMIT THE BIDDER TO AMEND HIS BID AFTER OPENING TO CONFORM TO THE SPECIFICATION AS MODIFIED BY ALL THE AMENDMENTS WOULD ALSO CONTRAVENE THE COMPETITIVE BIDDING STATUTES. 63 C.J.S. MUNICIPAL CORPORATIONS, SECTION 1003; 40 COMP. GEN. 447, 448; 42 ID. 490, 493. MOREOVER, WHEN, AS HERE, THERE IS A GENERAL CONFLICT BETWEEN THE CONTENTIONS OF A DISAPPOINTED BIDDER AND THE REPORT OF THE PROCUREMENT OFFICE, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE LATTER IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. 37 COMP. GEN. 568; 41 ID. 266, 269.

IT IS UNFORTUNATE THAT AMENDMENT NO. 1 TO THE INVITATION WAS NOT RECEIVED BY YOU PRIOR TO BID OPENING. THE PROCURING AGENCY HAS REPORTED TO US THAT ITS RECORDS INDICATE THAT THE AMENDMENT WAS MAILED TO YOU ON MAY 17, 1967. HOWEVER, WE HAVE HELD THAT FAILURE OF A BIDDER TO ACKNOWLEDGE AN AMENDMENT AFFECTING THE PRICE OF A PROCUREMENT BECAUSE THE BIDDER DID NOT RECEIVE IT, OR BECAUSE THE BIDDER OVERLOOKED IT, CANNOT BE WAIVED AS AN INFORMAL DEVIATION. 40 COMP. GEN. 126, 128; B-154580, JULY 8, 1964; B- 148790, JUNE 28, 1962; B 145874, JUNE 5, 1961; AND B-141188, DECEMBER 14, 1959.

ASIDE FROM THE NONRESPONSIVENESS OF YOUR BID THE CONTRACTING OFFICER HAS INDICATED THAT THE TECHNICAL EVALUATION OF YOUR BID REVEALED THAT IT WAS DEFICIENT WITH REGARD TO DESCRIPTIVE LITERATURE SUBMITTED IN RESPONSE TO THE BRAND-NAME OR EQUAL CLAUSE THAT:

"A. THE PHOTOGRAPH SUBMITTED AS A PART OF THEIR BID DEPICTED A MODEL 65- 115 CIRCUIT BREAKER, WHEREAS THEY WERE OFFERING THEIR MODEL TRE-22.5 MODIFIED TO BECOME MODEL TRE-22.5-1. TO SOME DEGREE, THIS CREATED AN AMBIGUITY SINCE THE REASON FOR THE PHOTOGRAPH OF THE MODEL 65-115 COULD NOT BE DETERMINED.

"B. THE MODIFICATION SHEET SUBMITTED AS A PART OF THEIR LITERATURE FAILED TO CLEARLY DESCRIBE HOW THE MODEL TRE-22.5 WOULD BE MODIFIED TO MAKE IT MODEL TRE-22.5-1 WHICH THE BIDDER ALLEGED WOULD BE EQUAL TO THE MULTI-AMP MODEL CB-225-66. AT MOST, THE MODIFICATIONS ARE DESCRIBED ONLY TO THE EXTENT THAT THE MODIFIED UNIT WOULD HAVE CERTAIN OPERATIONAL CAPABILITIES. SINCE THE LITERATURE OF THE BORG-WARNER BASIC MODEL TRE 22.5 WAS, AT BEST, CONSIDERED SKETCHY AND MINIMUM, THE ENGINEERING PERSONNEL PERFORMING THE EVALUATION WERE AT A LOSS TO DETERMINE THE SIGNIFICANCE OF THE PROPOSED MODIFICATIONS AND THEREBY THE PROBABILITY OF THE MODEL TRE-22.5-1 SUCCESSFULLY PERFORMING SO AS TO MEET THE MINIMUM SALIENT CHARACTERISTICS DESCRIBED IN THE INVITATION.'

IT WOULD THUS APPEAR THAT YOU FAILED TO DEMONSTRATE THE EQUALITY OF YOUR OFFERED PRODUCT TO THE REFERENCED BRAND-NAME PRODUCT AND ITS SALIENT CHARACTERISTICS.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE ACTIONS TAKEN WITH RESPECT TO YOUR BID. YOUR PROTEST IS THEREFORE DENIED.