B-171741, JUL 27, 1971

B-171741, JUL 27, 1971

BID PROTEST - AMENDMENT OF SOLICITATION - ACKNOWLEDGEMENT DECISION DENYING PROTEST ON BEHALF H. J. OSTERFELD COMPANY AGAINST THE AWARD OF A CONTRACT TO TIMMONS, BUTT & HEAD (TBH) UNDER AN IFB ISSUED BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION. PROTESTANT CONTENDS THAT TBH SHOULD HAVE BEEN DISQUALIFIED FOR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 3 TO THE IFB. TBH CONTENDS THAT THE AMENDMENT MATERIAL WAS INCLUDED IN THEIR BID. THE COMP. GEN. HAS PREVIOUSLY HELD THAT FAILURE OF A BIDDER TO ACKNOWLEDGE AN AMENDMENT DOES NOT REQUIRE THAT THE BID BE REJECTED IF IT CAN BE SHOWN THAT THE BIDDER WILL BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE SOLICITATION. FROM THE RECORD IN THIS CASE, THE COMP. GEN. BELIEVES THAT TBH WILL BE BOUND BY THE TERMS INCLUDED IN THE AMENDMENT AS WELL AS THE ORIGINAL SOLICITATION.

TO MR. HOWARD N. THIELE, JR.:

REFERENCE IS MADE TO A COPY OF YOUR LETTER OF MAY 1, 1971, TO THE CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, DEPARTMENT OF THE AIR FORCE, AND TO PRIOR CORRESPONDENCE TO CONGRESSMAN CHARLES W. WHALEN, JR., FROM THE H. J. OSTERFELD COMPANY PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. F33615 71-B-0013, ISSUED BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE INVITATION SOLICITED BIDS FOR ALTERATION OF THE ENVIRONMENTAL CONTROL SYSTEMS IN BUILDING NO. 620, AREA "B", AT WRIGHT-PATTERSON AIR FORCE BASE. BIDS WERE RECEIVED FROM SIX BIDDERS. TIMMONS, BUTT & HEAD, INC. (TBH), A JOINT VENTURE, SUBMITTED THE LOW BID. HOWEVER, THE TBH BID DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT 3 TO THE INVITATION. THE H. J. OSTERFELD COMPANY PROTESTED TO THE CONTRACTING OFFICER ANY AWARD TO TBH. THE PROTEST WAS DENIED BY THE CONTRACTING OFFICER ON THE BASIS THAT THE TBH LOW BID WAS RESPONSIVE TO THE INVITATION. ON JANUARY 5, 1971, A CONTRACT IN THE AMOUNT OF $1,467,900 WAS AWARDED TO TBH.

THE INVITATION WAS ISSUED ON STANDARD FORM 33 WHICH IN PERTINENT PART PROVIDED:

"SOLICITATION

" *** ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A.

2. THE GENERAL PROVISIONS WHICH ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.) ***

"TABLE OF CONTENTS

"THE FOLLOWING CHECKED SECTIONS ARE CONTAINED IN THE CONTRACT

*** PART IV - LIST OF DOCUMENTS AND ATTACHMENTS

(X) SEC PAGE

X M LIST OF DOCUMENTS AND ATTACHMENTS.

"OFFER ***

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN *** 60 CALENDAR DAYS *** TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET FORTH, DELIVERED AT THE DESIGNATED POINTS, WITHIN THE TIME SPECIFIED IN THE SCHEDULE."

ON PAGE 28, SECTION "M," AS REFERRED TO ABOVE, APPEARED THE FOLLOWING:

"ATTACHMENT

1 TECHNICAL PROVISIONS, WP 545-9, DATED JULY 1970,

CONSISTING OF SPECIAL INSTRUCTIONS ON PAGES SI-1

THRU SI-6 AND TECHNICAL PROVISIONS, DIVISIONS 1,

2, 3, 5, 6, 7, 8, 9, 10, 13, 15, AND 16 (AS SET

FORTH IN THE INDEX PAGES A, B, AND C); AND ADDENDUM

NO. 1, DATED 7 OCTOBER 1970, CONSISTING OF PAGES A-1 AND

A-2."

ON PAGE (B) OF THE TECHNICAL PROVISIONS WP 545-9 INDEX THERE APPEARED THE FOLLOWING:

"DIVISION SECTION & TITLE PAGES

8 ***

8C HARDWARE, BUILDERS' 8C-1 TO 8C-6"

THESE PAGES ARE OUTLINED FURTHER ON PAGE (J) OF THE TECHNICAL PROVISIONS AS FOLLOWS:

"PARAGRAPH NO. PARAGRAPH TITLE PAGE NO.

SECTION 8C - HARDWARE; BUILDERS'

5 SAMPLE REQUIREMENTS AND HARDWARE

SCHEDULE 8C-2

6 PACKING, MARKING, AND LABELING 8C-2

7 FINISHES OF HARDWARE 8C-3

8 FASTENINGS 8C-3

9 LOCKSETS, LOCK TRIM AND DOOR TRIM 8C-3"

FOLLOWING AN INQUIRY FROM A NONBIDDER, THE CONTRACTING OFFICER EXAMINED COPIES OF THE TECHNICAL PROVISIONS AT THE PROCURING ACTIVITY AND FOUND THAT PAGES 8C-2 AND 8C-3 WERE MISSING FROM SOME SOLICITATIONS. THEREFORE, THE CONTRACTING OFFICER ISSUED AMENDMENT 3 AS FOLLOWS:

"SOME COPIES OF THE TECHNICAL PROVISIONS, DATED JULY 1970, WERE FOUND TO BE LACKING PAGES 8C-2 AND 8C-3 OF SECTION 8C. TO ASSURE EACH PROSPECTIVE BIDDER HAS A COMPLETE SET, THE MISSING PAGES ARE PROVIDED HEREWITH."

IN CONFIRMING ITS BID TO THE CONTRACTING OFFICER, TBH ADMITTED IT NEVER RECEIVED A COPY OF AMENDMENT 3, BUT STATED THAT PAGES 8C-2 AND 8C 3 WERE CONTAINED IN THE BID SET USED BY TBH IN ITS BID AND THAT ITS BID INCLUDED ALL THE WORK SPECIFIED IN SECTION 8C, PAGES 8C-1 THROUGH 8C 6.

THE QUESTION OF THE RESPONSIVENESS OF A BID SUBMITTED WITHOUT ACKNOWLEDGING ONE OR MORE AMENDMENTS TO THE ORIGINAL INVITATION HAS BEEN BEFORE OUR OFFICE ON NUMEROUS OCCASIONS. OUR CONSIDERATION OF THIS QUESTION HAS RESULTED IN A GENERAL RULE THAT WHERE SUCH AN AMENDMENT COULD AFFECT PRICE, QUANTITY OR QUALITY, THE FAILURE OF THE BIDDER TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT PRIOR TO THE TIME SET FOR THE OPENING OF BIDS IS MATERIAL AND RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785 (1958). HOWEVER, AS ALSO NOTED ON SEVERAL OCCASIONS, 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 THE TERMS AND CONDITIONS OF THE INVITATION, AS AMENDED. SEE 48 COMP. GEN. 555, 558, 559 (1969).

THE QUESTION THEN ARISES WHETHER THERE IS EVIDENCE IN THE TBH BID THAT BINDS TBH TO THE CONTENTS OF PAGES 8C-2 AND 8C-3. ASIDE FROM TBH'S ASSERTION THAT THE IFB IT RECEIVED CONTAINED PAGES 8C-2 AND 8C-3, WE BELIEVE THAT TBH WAS BOUND TO THE PROVISIONS OF THE INVITATION AS LISTED IN ATTACHMENT 1 WHICH, AS SHOWN ABOVE, DEFINITELY INCORPORATED THE TECHNICAL PROVISIONS INCLUDING, AMONG OTHER REQUIREMENTS, THE LISTED PAGES 8C-1 TO 8C-6. THESE PAGES BECAME A PART OF THE TBH BID BY VIRTUE OF THE LANGUAGE IN THE OFFER STATING IT WAS "IN COMPLIANCE WITH THE ABOVE," THAT IS, ATTACHMENT 1.

WE HAVE HELD THAT SUCH PHRASE, "IN COMPLIANCE WITH THE ABOVE," REFERS TO THAT PORTION OF THE SOLICITATION QUOTED ABOVE WHICH PROVIDES THAT ALL OFFERS SHALL BE SUBJECT TO THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE GENERAL PROVISIONS, THE SCHEDULE, AND SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS AND SPECIFICATIONS AS ARE INCORPORATED BY REFERENCE OR LISTED IN THE SCHEDULE AS ATTACHMENTS. SEE 49 COMP. GEN. 289, 291 (1969). IN THAT DECISION, WE HELD THAT SINCE THAT SOLICITATION PORTION OF THE SCHEDULE WAS SUBMITTED WITH THE LOW BID AND SINCE SUCH PORTION IDENTIFIED IN DETAIL ALL THE VARIOUS CONDITIONS, PROVISIONS, SCHEDULES, CERTIFICATES AND OTHER DOCUMENTS COMPRISING THE TERMS OF THE CONTRACT TO BE AWARDED, SUCH REFERENCES IN THE BID SUBMITTED BY THE LOW BIDDER CLEARLY OPERATED TO INCORPORATE ALL OF THE SOLICITATION DOCUMENTS INTO THE BID, AND THAT AN AWARD TO THE LOW BIDDER BOUND HIM TO PERFORMANCE IN FULL ACCORD WITH THE CONDITIONS SET OUT IN THE REFERENCED DOCUMENTS. IN ACCORD WITH THE FOREGOING REASONING, WE FIND NO REASON TO DISAGREE WITH THE ACTION OF THE CONTRACTING OFFICER IN WAIVING THE FAILURE OF TBH TO ACKNOWLEDGE AMENDMENT NO. 3.

YOUR CONTENTION THAT A VIOLATION OF FEDERAL ANTITRUST LAWS MAY HAVE OCCURRED IN THE PROCUREMENT IS FOR THE CONSIDERATION OF THE DEPARTMENT OF JUSTICE AND NOT BY OUR OFFICE. 21 COMP. GEN. 56 (1941); 50 COMP. GEN. (B- 171669(1), MARCH 24, 1971); AND 10 U.S.C. 2305(D).

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.