B-180656, JUN 26, 1974

B-180656, JUN 26, 1974

WHERE AGENCY HAS ESTABLISHED PRIOR PRACTICE OF INDICATING ON SF 30 THAT AMENDMENT NEED NOT BE SIGNED AND RETURNED WHEN SUBJECT MATTER OF AMENDMENT IS OF SUCH NATURE AS TO ALLOW WAIVER OF BIDDER'S FAILURE TO ACKNOWLEDGE, SIMILAR PRACTICE EVEN WHEN AMENDMENT CONTAINED DEPARTMENT OF LABOR WAGE DETERMINATION UNFAIRLY MISLED REASONABLE BIDDER INTO CONCLUDING THAT FAILURE TO ACKNOWLEDGE WOULD BE WAIVED IRRESSPECTIVE OF PROVISIONS OF SF 30.

TO BARA PHOTOGRAPHIC, INC.:

INVITATION FOR BIDS (IFB) NO. 5-53473/666, ISSUED ON JANUARY 9, 1974, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), GODDARD SPACE FLIGHT CENTER, SOUGHT BIDS ON STILL PHOTOGRAPHIC SERVICES. THE IFB INCORPORATED BY REFERENCE THE FOLLOWING CLAUSE RELATING TO THE SERVICE CONTRACT ACT:

"(A) COMPENSATION. EACH SERVICE EMPLOYEE EMPLOYED IN THE PERFORMANCE OF THIS CONTRACT BY THE CONTRACTOR OR ANY SUBCONTRACTOR SHALL BE PAID NOT LESS THAN THE MINIMUM MONETARY WAGE AND SHALL BE FURNISHED FRINGE BENEFITS IN ACCORDANCE WITH THE WAGES AND FRINGE BENEFITS DETERMINED BY THE SECRETARY OF LABOR OR HIS AUTHORIZED REPRESENTATIVE, AS SPECIFIED IN ANY ATTACHMENT TO THIS CONTRACT. ***"

NASA STATES THAT:

"*** PRIOR TO THE ISSUANCE OF THE IFB IT WAS ASCERTAINED THAT THE DEPARTMENT OF LABOR WOULD ISSUE A WAGE DETERMINATION APPLICABLE TO THIS PROCUREMENT. RATHER THAN DELAY THE PROCUREMENT, THE CONTRACTING OFFICER DETERMINED THAT THE SOLICITATION SHOULD BE ISSUED, AND THAT THE WAGE DETERMINATION OF THE SECRETARY OF LABOR WOULD BE INCORPORATED BY A LATER AMENDMENT ***."

IN THIS REGARD, AMENDMENT NO. 1, CONTAINING WAGE DETERMINATION NO. 74 67 DATED JANUARY 25, 1974, WAS ISSUED ON JANUARY 31, 1974. AMENDMENT NO. 2, RELATING TO BILLING PROCEDURES, WAS ALSO ISSUED ON JANUARY 31, 1974.

UPON OPENING, FEBRUARY 5, 1974, THE FOLLOWING BIDS WERE RECEIVED:

BARA PHOTOGRAPHIC, INC. $140,615.80

CONSOLIDATED VISUAL CENTER 172,181.80

B. L. LABS 183,173.00

SCIEN-TECH COMMUNICATIONS 216,708.15

JAMES R. DULOP, INC. 239,422.50

NASA NOTED THAT BARA HAD FAILED TO ACKNOWLEDGE RECEIPT OF EITHER AMENDMENT 1 OR 2. THE CONTRACTING OFFICER, THEREAFTER, DECLARED BARA'S BID NONRESPONSIVE ON THIS BASIS.

BARA ASSERTS THAT BLOCK 13 OF STANDARD FORM (SF) 30 (JULY 1966), AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT, AS CHECKED BY NASA, LED THE PROTESTER TO CONCLUDE THAT NOTHING FURTHER WAS REQUIRED OF IT IN THE FORM OF AN ACKNOWLEDGMENT. BLOCK 13 OF AMENDMENT NO. 1 READ AS FOLLOWS:

"(X) CONTRACTOR/OFFEROR IS NOT REQUIRED TO SIGN THIS DOCUMENT

( ) CONTRACTOR/OFFEROR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN COPIES TO ISSUING OFFICE"

NASA CONTENDS THAT EVEN THOUGH BLOCK 13 WAS CHECKED AS IT WAS, THERE WAS NO WAIVER OF THE BIDDER'S OBLIGATION UNDER BLOCK 9 TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT.

BLOCK 9 READ AS FOLLOWS:

"9. THIS BLOCK APPLIES ONLY TO AMENDMENTS OF SOLICITATIONS

(X) THE ABOVE NUMBERED SOLICITATION IS AMENDED AS SET FORTH IN BLOCK 12.

THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS ( ) IS EXTENDED, (X) IS NOT EXTENDED.

OFFERORS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SPECIFIED IN THE SOLICITATION, OR AS AMENDED, BY ONE OF THE FOLLOWING METHODS:

(A) BY SIGNING AND RETURNING COPIES OF THIS AMENDMENT; (B) BY ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE OFFER SUBMITTED; OR (C) BY SEPARATE LETTER OR TELEGRAM WHICH INCLUDES REFERENCE TO THE SOLICITATION AND AMENDMENT NUMBERS. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED, SUCH CHANGE MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THE SOLICITATION AND THIS AMENDMENT, AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED."

IN 51 COMP. GEN. 408 (1972), WE WERE PRESENTED WITH AN ESSENTIALLY SIMILAR SITUATION - A BIDDER'S FAILURE TO ACKNOWLEDGE A BID AMENDMENT WHERE BLOCK 13 DID NOT REQUIRE SIGNATURE AND RETURN. THERE WE HELD THAT THE FAILURE TO ACKNOWLEDGE WAS A VALID BASIS TO CONCLUDE THAT THE BID WAS NONRESPONSIVE. WE FEEL, HOWEVER, THAT THE FACTS OF THAT DECISION ARE DISTINGUISHABLE IN AT LEAST ONE SIGNIFICANT RESPECT FROM THOSE PRESENTED HERE.

WE HAVE BEEN ADVISED INFORMALLY THAT THE CONTRACTING ACTIVITY HAS HAD A PRACTICE OF CHECKING THE TOP BLANK IN BLOCK 13 - INDICATING THAT THE RECIPIENT IS NOT REQUIRED TO SIGN THE AMENDMENT - IN THOSE CASES WHERE THE AMENDMENT IS PRIMARILY INFORMATIONAL, I.E., WHERE FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT ON A TIMELY BASIS CAN AND SHOULD BE WAIVED AS A MINOR INFORMALITY. WHILE THE ACTIVITY ADVISES THAT THE PRACTICE WAS NOT INTENDED TO NEGATE THE BIDDER'S OBLIGATION TO PROPERLY ACKNOWLEDGE RECEIPT OF AN AMENDMENT, WE BELIEVE THAT A BIDDER FAMILIAR WITH THE PRACTICE COULD REASONABLY HAVE BEEN LED TO ASSUME THAT THE CHECK IN THE TOP BLANK INDICATED THAT THE AMENDMENT DID NOT HAVE TO BE ACKNOWLEDGED ON A TIMELY BASIS. BARA, THE INCUMBENT CONTRACTOR, SEEMS TO HAVE BEEN SO MISLED TO HIS DETRIMENT IN THIS CASE. IN VIEW OF THE PRIOR PRACTICE, THE ACTIVITY SHOULD EITHER HAVE CHECKED THE LOWER BLANK, REQUIRING THAT THE AMENDMENT BE SIGNED AND RETURNED, OR MADE CLEAR THAT THE PRIOR PRACTICE WAS NO LONGER BEING FOLLOWED. SINCE NEITHER WAS DONE, WE BELIEVE IT WOULD BE APPROPRIATE TO RESOLICIT THE PROCUREMENT.