B-168531, DEC. 30, 1969

B-168531, DEC. 30, 1969

SPECIFICATIONS--AMBIGUOUS--PATENT AMBIGUITY LOW BIDDER'S FAILURE TO TIMELY ACKNOWLEDGE TELEGRAM CLARIFYING REFERENCES MADE IN RESUME OF PREBID CONFERENCE ATTACHED TO AMENDMENT DELETING 60-DAY LIMITATION REQUIRED UNDER INVITATION FOR REDISTRIBUTION OF INACTIVE SHIPS' MOVABLES, WAS PROPERLY WAIVED AS INFORMALITY SINCE BIDDER WAS STILL BOUND TO PERFORM IN ACCORDANCE WITH INVITATION, AS AMENDED; SPECIFICATIONS WERE NOT RENDERED AMBIGUOUS BY REASON OF AMENDMENT; TELEGRAM REPRESENTED NOTHING MORE THAN CONTEMPORANEOUS INTERPRETATION OF SPECIFICATIONS BY CONTRACTING OFFICIALS AS OF PREBID CONFERENCE DATE; NOTHING IN ASPR 2-207 JUSTIFIES BIDDER'S RELIANCE ON ATTACHMENT TO AMENDMENT AS AGAINST AMENDMENT ITSELF; BIDDERS WERE EXPECTED TO EXAMINE SPECIFICATIONS AND ALL INSTRUCTIONS; AND TIME TO OBJECT TO ALLEGED AMBIGUOUS INVITATION WAS PRIOR TO BID OPENING. BIDS- UNSIGNED--EVIDENCE OF BIDDER'S INTENT TO BE BOUND FAILURE OF LOW BIDDER, UNDER INVITATION FOR OFF-LOADING AND REDISTRIBUTION OF INACTIVE SHIPS' MOVABLES, TO COMPLY WITH INVITATION REQUIREMENT OF TYPING OR PRINTING BIDDER'S NAME ON EACH CONTINUATION SHEET, DOES NOT REQUIRE REJECTION WHERE INTENTION OF BIDDER TO SUBMIT BINDING BID HAS BEEN SHOWN, AND WAS HERE EVIDENCED BY SIGNATURE OF BIDDER'S VICE PRESIDENT ON FIRST BID PAGE. SEE 48 COMP. GEN. 648.

TO MR. MILTON C. GRACE:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 2, 12, AND 18, 1969, ON BEHALF OF GULF STATES ENTERPRISE, INC. (GULF STATES), PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. N0060-70-B -0123, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C.

THE INVITATION, ISSUED ON SEPTEMBER 30, 1969, SOLICITED BIDS FOR SERVICES TO OFF-LOAD, SCREEN, IDENTIFY, INVENTORY, UPDATE AND REDISTRIBUTE MATERIAL, NOT PERMANENTLY INSTALLED, FROM DESIGNATED INACTIVE SHIPS AT SIX NAVAL SHIPYARDS. UNIT BID PRICES WERE REQUESTED ON VARIOUS LINE ITEMS, INDEFINITE IN QUANTITY, TO BE ORDERED BY THE GOVERNMENT FOR THE TERM OF THE CONTRACT. THE REQUIRED SERVICES WERE SET FORTH IN SIX LOTS CORRESPONDING TO THE SIX INACTIVE SHIP DEPOTS. GULF STATES OFFERED THE REQUIRED SERVICES ON LOT VI, COVERING THE NAVAL DEPOT AT ORANGE, TEXAS. AS AMENDED, THE INVITATION REQUIRED THE GOVERNMENT TO ORDER SERVICES IN THE MINIMUM AMOUNT OF $40,000 NOT TO EXCEED A MAXIMUM AMOUNT WHICH WOULD BE SET FORTH IN THE ACTUAL AWARD. THE MAXIMUM AMOUNT WAS TO BE COMPUTED BY MULTIPLYING THE SUCCESSFUL BIDDER'S UNIT PRICES BY THE ESTIMATED NUMBER OF ITEMS APPLICABLE TO EACH LINE ITEM. THE SOLICITATION PLACED SPECIFIC LIMITATIONS ON THE NUMBER OF UNITS PER LINE ITEM WHICH THE CONTRACTOR WOULD BE REQUIRED TO PERFORM WITHIN ANY 3-MONTH PERIOD.

THE SOLICITATION, AT PAGE 27, PROVIDES IN THE SECOND PARAGRAPH OF PARAGRAPH C2 AS FOLLOWS:

"IF REDISTRIBUTION INSTRUCTION IS NOT PROVIDED BY 60 DAYS AFTER INTERROGATION CARDS ARE MAILED BY OIC, ISSOT, ALL REMAINING MATERIAL WILL BE DISPOSED OF IN ACCORDANCE WITH PARAGRAPH D, MATERIAL DISPOSAL * * *"

THE EFFECT OF THIS PARAGRAPH IS THAT IF THE GOVERNMENT COULD NOT PROVIDE DISPOSITION INSTRUCTIONS TO THE CONTRACTOR WITHIN 60 DAYS AFTER INTERROGATION CARDS WERE MAILED, THE MATERIAL COVERED BY THE CARDS WOULD AUTOMATICALLY BECOME DISPOSAL MATERIAL.

ON OCTOBER 13, 1969, IN ACCORDANCE WITH PAGE 20 OF THE INVITATION, A BIDDERS' CONFERENCE AND SITE VISIT WAS HELD AT NAVAL STATION, ORANGE, TEXAS, INACTIVE SHIP MAINTENANCE FACILITY, USS PELLAS AS-14. BIDDERS' QUESTIONS WERE ANSWERED BY GOVERNMENT CONTRACTING OFFICIALS IN CONSONANCE WITH PARAGRAPH 2-207 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR); A REPRESENTATIVE OF GULF STATES ATTENDED AND PARTICIPATED IN THE CONFERENCE.

SUBSEQUENTLY, THE GOVERNMENT DETERMINED THAT THE RISK OF CERTAIN USABLE HIGH VALUE ITEMS POSSIBLY BEING DISPOSED OF UNDER THE ABOVE QUOTED PARAGRAPH WAS UNACCEPTABLE; THEREFORE, WHEN AMENDMENT 0001 TO THE INVITATION WAS ISSUED ON NOVEMBER 3, 1969, PAGE 6 INCLUDED A DELETION OF THE 60-DAY DISPOSAL ALLOWANCE AND SUBSTITUTED, IN LIEU THEREOF, THE FOLLOWING:

"FROM TIME TO TIME THE OIC, ISSOT WILL REQUIRE THE CONTRACTOR TO DISPOSE OF DESIGNATED UNDISTRIBUTED MATERIAL IN ACCORDANCE WITH PARAGRAPH D, 'MATERIAL DISPOSAL' * * *"

OTHER SPECIFICATION REQUIREMENTS WERE MODIFIED BY THIS AMENDMENT. PAGE 9 OF THE AMENDMENT ADVISED BIDDERS THAT CERTAIN ATTACHMENTS WERE FORWARDED AND MADE APPLICABLE TO THE SOLICITATION. LISTED AS ATTACHMENT (7) WAS A "SUMMARY OF QUESTIONS AND ANSWERS DISCUSSED AT BIDDERS' CONFERENCES HELD IN CONNECTION WITH THIS PROCUREMENT." ATTACHMENT (7), ENTITLED "RESUME OF QUESTION AND ANSWER SESSIONS DURING BIDDER'S CONFERENCES" CONTAINED THE FOLLOWING:

"QUESTION: ARE BID EVALUATION FIGURES ESTIMATED AMOUNTS TO BE ORDERED?

"ANSWER: YES.

"QUESTION: PARAGRAPH 7, PAGE 26, REQUIRES THE CONTRACTOR TO REMOVE AND SEGREGATE MATERIAL THAT DOES NOT UPDATE. DUE TO THE TIME AND EFFORT INVOLVED, SHOULD THIS NOT BE AN ADDITIONAL LINE ITEM?

"ANSWER: NO. SINCE 60 DAYS AFTER THE EAM CARDS ARE MAILED FOR SYSTEM INTERROGATION, ANY MATERIAL NOT SELECTED FOR REDISTRIBUTION WILL AUTOMATICALLY BECOME DISPOSAL CANDIDATES. MATERIAL SEGREGATION DURING THE UPDATE PROCESS NEED NOT BE PERFORMED UNLESS THE CONTRACTOR DESIRES THE SPACE FOR OTHER MATERIAL. SEGREGATION OF THE APPLICABLE WORK CARDS WILL ENSURE PAYMENT TO THE CONTRACTOR FOR UNSUCCESSFUL UPDATE EFFORT."

"QUESTION: HOW MANY REDISTRIBUTION ACTIONS AND HOW MANY TYPES OF DOCUMENTS MAY BE EXPECTED WITHIN A REDISTRIBUTION UNIT?

"ANSWER: SINCE A REDISTRIBUTION UNIT WILL CONSIST OF NO LESS THAN 3,000 SEPARATE LINE ITEMS, AND A 60 DAY REDISTRIBUTION PERIOD WILL EXIST, YOU MUST ASSUME AS MANY ACTIONS AS LINE ITEMS. DUE TO SYSTEMS CHANGES, THE MAXIMUM NUMBER OF DOCUMENT TYPES ARE NOT AVAILABLE."

IT IS REPORTED THAT A BIDDER MISINTERPRETED THE FIRST QUESTION AND ANSWER AFTER MODIFICATION 0001 HAD BEEN ISSUED. THE BIDDER INTERPRETED THE QUESTION AND ANSWER TO MEAN THAT THE GOVERNMENT WOULD BE REQUIRED TO ORDER THE FULL ESTIMATED QUANTITIES LISTED IN THE INVITATION. IN ADDITION, THE CONTRACTING OFFICER HAD NOTED, ON HIS OWN INITIATIVE, THAT THE LAST TWO QUESTIONS AND ANSWERS MADE REFERENCE TO THE 60-DAY DISPOSAL REQUIREMENT ALTHOUGH THIS REQUIREMENT HAD BEEN DELETED BY AMENDMENT 0001. ON NOVEMBER 7, 1969, THE CONTRACTING OFFICER TRANSMITTED THE FOLLOWING TELEGRAPHIC MESSAGE TO ALL PROSPECTIVE BIDDERS TO "CLARIFY" THE QUESTIONS AND ANSWERS REFERRED TO ABOVE. THE TELEGRAM READS AS FOLLOWS:

"REF (A) THE QUESTION READS AS FOLLOWS: 'ARE BID EVALUATION FIGURES ESTIMATED AMOUNTS TO BE ORDERED?' THE ANSWER GIVEN WAS 'YES' IN CLARIFICATION OF THE 'YES' ANSWER GIVEN, THE FOLLOWING CONDITIONS MUST BE CONSIDERED BY ALL BIDDERS: THE ESTIMATED QUANTITIES REPRESENT THE GOVERNMENTS BEST ESTIMATE OF WORK TO BE ACCOMPLISHED DURING A ONE YEAR PERIOD FOLLOWING CONTRACT AWARD AND ARE BASED ON CURRENT FORECASTS SUBJECT TO PROGRAM CHANGES AND POSSIBLE BUDGETARY LIMITATIONS. YOUR ATTENTION IS INVITED TO THE MINIMUM AND MAXIMUM CONTRACT AMOUNT (1966 FEE) CLAUSE SET FORTH ON PAGE 63 OF THE INVITATION FOR BIDS, AS AMENDED, WHICH READS AS FOLLOWS: MINIMUM AND MAXIMUM CONTRACT AMOUNT (1966 FEB) DURING THE LIFE OF THIS CONTRACT, THE GOVERNMENT SHALL PLACE ORDERS TOTALING A MINIMUM OF $40,000.00, APPLICABLE TO EACH SEPARATE LOT. TOTAL ORDERS PLACED DURING THE LIFE OF THE CONTRACT SHALL NOT EXCEED A MAXIMUM AMOUNT TO BE SET FORTH IN AWARD.

"REF (B) THE ANSWER GIVEN IS HEREWITH DELETED AND THE FOLLOWING IS SUBSTITUTED THEREFOR. ANSWER: NO. SINCE ANY MATERIAL NOT SELECTED FOR REDISTRIBUTION WILL AUTOMATICALLY BECOME DISPOSAL CANDIDATES. MATERIAL SEGREGATION DURING THE UPDATE PROCESS NEED NOT BE PERFORMED UNLESS THE CONTRACTOR DESIRES THE SPACE FOR OTHER MATERIAL. SEGREGATION OF THE APPLICABLE WORK CARDS WILL ENSURE PAYMENT TO THE CONTRACTOR FOR UNSUCCESSFUL UPDATE EFFORT.

"REF (C) THE ANSWER GIVEN IS HEREWITH DELETED AND THE FOLLOWING IS SUBSTITUTED THEREFOR. ANSWER: SINCE A REDISTRIBUTION UNIT WILL CONSIST OF NO LESS THAN 3,000 SEPARATE LINE ITEMS, YOU MUST ASSUME AS MANY ACTIONS AS LINE ITEMS. DUE TO SYSTEMS CHANGES, THE MAXIMUM NUMBER OF DOCUMENT TYPES ARE NOT AVAILABLE.

"REQUEST ACKNOWLEDGMENT"

MODIFICATION 0002 ISSUED ON NOVEMBER 5, 1969, EXTENDED THE OPENING OF BIDS ORIGINALLY SCHEDULED FOR NOVEMBER 7, 1969, TO NOVEMBER 12, 1969. THE FOLLOWING BIDS FOR LOT VI WERE RECEIVED:

GULF STATES $1,706,948

MARINE INVENTORY SERVICES 2,274,000

PILLSBURY & MARTIGNONI 3,651,900

SOFTWARE OCEANOGRAPHY & PURIFICATION 1,727,520

SPACE AGE ENGINEERING, INC. (SPACE AGE) 1,531,420

ALTHOUGH SPACE AGE, THE EVALUATED LOW BIDDER ON LOT VI, HAD ACKNOWLEDGED MODIFICATIONS 0001 AND 0002 PRIOR TO BID OPENING, IT FAILED TO ACKNOWLEDGE RECEIPT OF THE NOVEMBER 7 TELEGRAPHIC MESSAGE UNTIL NOVEMBER 13, 1969, SUBSEQUENT TO BID OPENING. ALL OTHER BIDDERS ACKNOWLEDGED RECEIPT OF THE TELEGRAM TIMELY.

AWARD OF LOT I WAS MADE ON NOVEMBER 17, 1969, BUT AWARD ON LOTS II, III, IV AND, OF PARTICULAR SIGNIFICANCE TO THIS PROTEST, LOT VI IS BEING WITHHELD PENDING A DECISION BY OUR OFFICE.

YOU MAINTAIN THAT THE NOVEMBER 7 TELEGRAM WAS AN AMENDMENT TO THE INVITATION, AS PREVIOUSLY AMENDED, AND, AS SUCH, SPACE AGE'S FAILURE TO TIMELY ACKNOWLEDGE RECEIPT THEREOF RENDERED ITS BID NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. YOU ADDITIONALLY URGE THAT THE SOLICITATION WAS AMBIGUOUS UNTIL THE NOVEMBER 7 "AMENDMENT" WAS ISSUED. THEREFORE, YOU CONTEND THAT NO LAWFUL AWARD CAN BE MADE TO SPACE AGE, WHOSE FAILURE TO ACKNOWLEDGE THE "AMENDMENT" MADE ITS BID RESPONSIVE ONLY TO AN AMBIGUOUS INVITATION, UPON WHICH A VALID AWARD CANNOT BE BASED.

IN VIEW OF OUR ULTIMATE CONCLUSION WE DO NOT CONSIDER IT NECESSARY TO DETERMINE WHETHER THE TELEGRAM CONSTITUTED AN AMENDMENT TO THE SOLICITATION. HOWEVER, ASSUMING ARGUENDO, THAT THE TELEGRAM IS AN "AMENDMENT" OF THE SOLICITATION, AS YOU CONTEND, THE QUESTION FOR DECISION IS WHETHER THE FAILURE OF SPACE AGE TO TIMELY ACKNOWLEDGE THE TELEGRAM RENDERED ITS BID NONRESPONSIVE. NATURALLY ATTENDANT TO CONSIDERATION OF THE RESPONSIVENESS OF SPACE AGE'S BID IS A DISCUSSION OF THE ALLEGATION THAT THE INVITATION, AS AMENDED, PRIOR TO THE TRANSMISSION OF THE NOVEMBER 7 TELEGRAM, WAS AMBIGUOUS.

OUR OFFICE HAS RULED ON THE QUESTION OF BID RESPONSIVENESS WHERE THERE WAS NOT A TIMELY ACKNOWLEDGMENT OF AN AMENDMENT TO AN ORIGINAL INVITATION. IN 37 COMP. GEN. 785 (1958), WE SET FORTH THE GENERAL RULE THAT, WHERE SUCH AMENDMENT COULD AFFECT PRICE, QUANTITY, OR QUALITY, THE FAILURE OF THE BIDDER TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT PRIOR TO THE TIME SET FOR BID OPENING IS MATERIAL, RENDERING THE CHALLENGED BID NONRESPONSIVE. THE UNDERLYING REASON FOR THIS RULE WAS SUCCINTLY STATED IN OUR DECISION B-150563, FEBRUARY 28, 1963, AS FOLLOWS:

"* * * A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER; THE AWARD IS AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE TWO PARTIES. IT IS WELL RECOGNIZED THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE. THE ACCEPTANCE OF A BID WHICH OFFERS TO PERFORM ON A BASIS OTHER THAN THE TERMS OF THE INVITATION INCLUDING ANY AMENDMENTS WOULD BE CONTRARY TO THE STATUTES GOVERNING ADVERTISED PROCUREMENTS. UNITED STATES V. ELLICOTT, 223 U.S. 524 (1911). ON THE OTHER HAND, TO PERMIT THE BIDDER TO AMEND HIS BID AFTER OPENING IN ORDER TO CONFORM TO THE ADVERTISED SPECIFICATIONS WOULD ALSO CONTRAVENE THE COMPETITIVE BIDDING STATUTES. C.J.S. MUNICIPAL CORPORATIONS, SEC. 1003; 40 COMP. GEN. 447, 448." SEE B- 165715 (1), FEBRUARY 27, 1969, 48 COMP. GEN. ----; 42ID. 490 (1963); B- 162614, NOVEMBER 27, 1967.

IN CONSONANCE WITH THE FOREGOING, ASPR 2-405 PERMITS THE CONTRACTING OFFICER TO WAIVE, WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT, MINOR INFORMALITIES OR IRREGULARITIES SUCH AS THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS UNDER CERTAIN CIRCUMSTANCES. SEE ASPR 2-405 (IV) (A) AND (B). A MINOR INFORMALITY HAS BEEN DEFINED AS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS. SEE B-162378, DECEMBER 21, 1967, AND CASES CITED THEREIN; B- 166333, APRIL 23, 1969. PARAGRAPH 10 (B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS RESERVES THE GOVERNMENT'S RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN OFFERS RECEIVED. IN THIS CONNECTION, WE STATED IN B-165715 (1), SUPRA, AS FOLLOWS:

"* * * THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT HAS BEEN HELD NOT TO REQUIRE THE REJECTION OF THE BID IF IT CAN BE SHOWN THAT THE BIDDER, UPON ACCEPTANCE OF THE BID, COULD BE REQUIRED TO PERFORM AT THE BID PRICE IN ACCORDANCE WITH ALL OF THE TERMS AND CONDITIONS OF THE INVITATION, AS AMENDED. SEE B-150563, SUPRA (FEBRUARY 28, 1963), AND CASES CITED THEREIN; B-165150, SEPTEMBER 16, 1968."

YOU CONTEND THAT THE SOLICITATION, AS AMENDED, PRIOR TO THE ISSUANCE OF THE TELEGRAM WAS AMBIGUOUS, CITING IN SUPPORT THEREOF THE CONFLICT BETWEEN THE LANGUAGE ON PAGE 6 OF AMENDMENT 0001 AND THE FAILURE TO DELETE THEREFROM THE REFERENCE TO THE 60-DAY DISPOSAL PERIOD IN THE RESUME OF THE PREBID CONFERENCE ATTACHED TO THE AMENDMENT.

RELYING UPON ASPR 2-207 WHICH IS CONCERNED WITH PREBID CONFERENCES, YOU STATE THAT THE INTERPRETATION GIVEN BY THE CONTRACTING OFFICIALS AT THE CONFERENCE IS TO BE REGARDED AS THE "OFFICIAL INTERPRETATION" OF THE SOLICITATION. THEREFORE, YOU URGE THAT THE BIDDERS WOULD BE ENTITLED TO GIVE PARAMOUNT AND CONTROLLING IMPORTANCE TO THE LANGUAGE OF THE PREBID CONFERENCE RESUME AND, IN ANY EVENT, THE CONFLICTING LANGUAGE RENDERED THE SPECIFICATIONS AMBIGUOUS. YOU CONCLUDE THAT IT WAS NOT UNTIL THE ISSUANCE OF THE NOVEMBER 7 TELEGRAM THAT THE AMBIGUITIES WERE CLARIFIED.

IN RESPONSE TO YOUR ALLEGATIONS, THE CONTRACTING OFFICER STATED:

"THE ANSWERS TO QUESTIONS B AND C ABOVE (TELEGRAM OF NOVEMBER 7), IN REFERRING TO THE 60 DAY LIMITATION, WERE IN CONFLICT WITH THE LANGUAGE ON PAGE 6 OF MODIFICATION 0001 WHICH DELETED THE LIMITATION, AND CERTAINLY THIS CONFLICT CREATED A POTENTIAL AMBIGUITY. IT IS THE CONTRACTING OFFICER'S OPINION, HOWEVER, THAT THIS POTENTIAL AMBIGUITY WAS A PATENT ONE WHICH ALL BIDDERS WERE EASILY ABLE TO RESOLVE WITHIN THE DOCUMENT ITSELF, PARTICULARLY SINCE BIDDERS WERE ADMONISHED AT THE PRE-BID CONFERENCES THAT ANSWERS GIVEN WERE TENTATIVE AND THAT ONLY A FORMAL AMENDMENT OF THE SOLICITATION COULD CHANGE THE SOLICITATION TERMS. BIDDERS WERE SPECIFICALLY ADVISED THAT A FORMAL AMENDMENT WOULD BE ISSUED WHICH WOULD CHANGE SOME PROVISIONS OF THE SOLICITATION. "ADMITTEDLY THE POTENTIAL AMBIGUITY IN MODIFICATION 0001 MIGHT HAVE PREVENTED THE GOVERNMENT FROM RECEIVING THE BENEFITS OF FULL AND FREE COMPETITION, IF (1) ANY OF THE BIDDERS HAD MISINTERPRETED MODIFICATION 0001 AND ASSUMED THE 60 DAY REQUIREMENT WERE STILL IN EFFECT, AND (2) THE POTENTIAL AMBIGUITY HAD NOT BEEN CLARIFIED PRIOR TO OPENING. SINCE THERE IS NO INDICATION THAT ANY BIDDER WAS MISLEAD BY MODIFICATION 0001 AND SINCE, IN ANY EVENT, ALL BIDDERS WERE PLACED ON NOTICE OF THE PROPER INTERPRETATION OF MODIFICATION 0001 ON 7 NOVEMBER, SEVERAL DAYS BEFORE BID OPENING, IT IS APPARENT THAT FULL AND FREE COMPETITION WAS IN FACT ACHIEVED UNDER SUBJECT SOLICITATION."

WE DO NOT BELIEVE THAT AMENDMENT 0001 CREATED AN AMBIGUITY WHICH NECESSITATED THE ISSUANCE OF THE NOVEMBER 7 TELEGRAM. THE AFFIRMATIVE LANGUAGE ON PAGE 6 OF AMENDMENT 0001 SPECIFICALLY DELETED THE 60-DAY CLEARING ALLOWANCE. WE REGARD THE RESUME ANSWERS IN ATTACHMENT (7) AS REPRESENTING NOTHING MORE THAN THE CONTEMPORANEOUS INTERPRETATION OF THE SPECIFICATIONS BY THE CONTRACTING OFFICIALS AS OF THE DATE OF THE PREBID CONFERENCE. IT IS NOTED THAT THE CONFERENCE WAS HELD MORE THAN 3 WEEKS BEFORE THE ISSUANCE OF THE TELEGRAM. WE FIND NOTHING IN ASPR 2 207 WHICH FURNISHES A LEGAL BASIS UPON WHICH A BIDDER WOULD BE JUSTIFIED IN RELYING ON THE LANGUAGE OF AN ATTACHMENT TO AN AMENDMENT AS HAVING PRECEDENCE OVER THE SPECIFIC LANGUAGE APPEARING IN THE BODY OF THE AMENDMENT. IT IS NOTED THAT PARAGRAPH 2 (A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES THAT BIDDERS ARE EXPECTED TO EXAMINE THE SPECIFICATIONS, AND ALL INSTRUCTIONS, ADMONISHING THAT FAILURE TO DO SO WOULD BE AT THE BIDDER'S RISK. IN THIS REGARD, THE APPROPRIATE POINT IN TIME FOR RAISING AN OBJECTION TO AN ALLEGEDLY AMBIGUOUS SOLICITATION IS PRIOR TO THE TIME OF BID OPENING. SEE B 164648, DECEMBER 16, 1968; B-151355, JUNE 25, 1963. WE CONCLUDE THAT A READING OF AMENDMENT 0001 IN ITS ENTIRETY DOES NOT GIVE RISE TO A PATENT AMBIGUITY SUBJECT TO MORE THAN ONE INTERPRETATION SO AS TO RENDER THE SPECIFICATIONS AMBIGUOUS. SEE B-157692, NOVEMBER 2, 1965; B 129678, NOVEMBER 8, 1956; B-140071, SEPTEMBER 29, 1959; B-160909, APRIL 19, 1967.

THE REMAINING ISSUE FOR RESOLUTION IS WHETHER SPACE AGE'S FAILURE TO TIMELY ACKNOWLEDGE THE TELEGRAM RENDERED ITS BID NONRESPONSIVE. HAVING CONCLUDED THAT THE SPECIFICATIONS WERE NOT RENDERED AMBIGUOUS BY REASON OF THE ISSUANCE OF AMENDMENT 0001, WE CANNOT CONCLUDE THAT THE FAILURE OF SPACE AGE TO ACKNOWLEDGE THE TELEGRAM HAD ANY EFFECT ON THE RESPONSIVENESS OF ITS BID. SINCE THE TELEGRAM MERELY PROVIDED THAT THE DELETION OF THE 60-DAY LIMITATION ACCOMPLISHED BY AMENDMENT 0001 WAS TO REMAIN IN EFFECT, SPACE AGE'S FAILURE TO ACKNOWLEDGE IT SHOULD BE CONSIDERED AS AN INFORMALITY WHICH HAS NO EFFECT UPON PRICE, QUALITY, OR QUANTITY. SEE B- 165715 (1), SUPRA; 41 COMP. GEN. 550 (1962). THE OBLIGATION OF SPACE AGE TO PERFORM ALL OF THE REQUIREMENTS OF THE SOLICITATION, IF ITS BID WERE ACCEPTED WITHOUT REGARD TO THE TELEGRAM OF NOVEMBER 7, WOULD BE THE SAME AS IF AWARD WERE MADE TO ANY OTHER BIDDER WHO DID TIMELY ACKNOWLEDGE SUCH AMENDMENT. HENCE, WE FIND NO BASIS FOR OBJECTING TO WAIVING THE FAILURE OF SPACE AGE TO ACKNOWLEDGE THE TELEGRAM. SEE B-165715 (1), SUPRA.

YOUR FINAL CONTENTION IS THAT SPACE AGE DID NOT COMPLY WITH PARAGRAPH 2 (B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS BY FAILING TO TYPE OR PRINT ITS NAME ON EACH CONTINUATION SHEET UPON WHICH AN ENTRY WAS MADE. OUR OFFICE HAS CONSISTENTLY HELD THAT DEVIATIONS FROM THE EXACT REQUIREMENTS OF THE SOLICITATION IN REGARD TO THE SIGNING OF A BID DOES NOT REQUIRE REJECTION WHERE THE INTENTION OF THE BIDDER TO SUBMIT A BINDING BID IS SHOWN. SEE B-166190, MARCH 25, 1969, 48 COMP. GEN. ----; ASPR 2-405 (III) (B). THAT THE BIDDER HERE HAD SUCH AN INTENTION IS DISCLOSED BY THE SIGNATURE OF ITS VICE PRESIDENT IN THE APPROPRIATE SPACE ON PAGE 1 OF ITS BID.

IN LIGHT OF THE FOREGOING, WE CONCLUDE THAT THE BID OF SPACE AGE ENGINEERING, INC; MAY BE CONSIDERED FOR AWARD, IF OTHERWISE PROPER. ACCORDINGLY, YOUR PROTEST IS DENIED.