B-154580, JUL. 8, 1964

B-154580, JUL. 8, 1964

TO SYSTEMS ENGINEERING CORPORATION:

BY TELEGRAM DATED JUNE 26, 1964, YOU PROTESTED AGAINST THE AWARD MADE TO THE PHILCO CORPORATION UNDER INVITATION FOR BIDS NO. 30-635-64 319, ISSUED BY HEADQUARTERS, ROME AIR MATERIEL AREA, GRIFFISS AIR FORCE BASE, NEW YORK, ON APRIL 15, 1964, NOTWITHSTANDING YOUR LOW BID.

THE INVITATION REQUESTED BIDS FOR FURNISHING ALL SERVICES NECESSARY FOR THE INSTALLATION OF AN AN/FLR-9 (V) OUTSIDE PLANT EQUIPMENT AT ELMENDORF AIR FORCE BASE, ANCHORAGE, ALASKA. SEVEN BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON MAY 15, 1964, AND IT APPEARED THAT YOU SUBMITTED THE LOW BID IN THE AMOUNT OF $664,000 AND THAT THE PHILCO CORPORATION SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $737,990. HOWEVER, YOU FAILED TO ACKNOWLEDGE AMENDMENT NO. 1 TO THE INVITATION, DATED MAY 1, 1964, WHICH INCORPORATED THE STANDARD PROVISION REQUIRING THE SUCCESSFUL BIDDER TO PAY THE MINIMUM WAGES PRESCRIBED BY THE DAVIS BACON ACT, 40 U.S.C. 276A. FOR THAT REASON, YOUR BID WAS REJECTED AND AWARD WAS MADE TO PHILCO ON JUNE 18, 1964, AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. 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.

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 ADDITIONAL OBLIGATION IMPOSED ON BIDDERS BY AMENDMENT NO. 1, OF COURSE, AFFECTED PRICE AND, AS SUCH, WAS A MATERIAL PART OF THE INVITATION. A BIDDER'S FAILURE TO ACKNOWLEDGE AND ASSENT TO THE TERMS OF SUCH AMENDMENT PRIOR TO THE TIME SCHEDULED FOR OPENING OF BIDS COULD NOT HAVE BEEN 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 CONTRACT OFFERED TO ALL BIDDERS. IF SUCH IS THE 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.

IT IS UNFORTUNATE THAT AMENDMENT NO. 1 TO THE INVITATION WAS NOT RECEIVED BY YOU. THE AIR FORCE HAS REPORTED TO US THAT THEY BELIEVE THAT THE AMENDMENT WAS MAILED TO ALL BIDDERS TO WHOM THE ORIGINAL INVITATION HAD BEEN SENT, INCLUDING SYSTEMS ENGINEERING. THIS BELIEF IS BASED ON THEIR RECORDS WHICH LIST ALL BIDDERS TO WHOM THEY SENT AN INVITATION AND THE STATEMENT OF THE CONTRACTING OFFICER THAT HE INSTRUCTED A CLERK IN HIS OFFICE TO SEND THE AMENDMENT TO EACH COMPANY WHICH WAS LISTED IN THE ORIGINAL SOURCES LIST OR HAD REQUESTED AN INVITATION AS A RESULT OF THE SYNOPSIS. IT IS RECOGNIZED THAT THIS IS NOT CONCLUSIVE THAT THE AMENDMENT WAS SENT; HOWEVER, IT HAS CONSISTENTLY BEEN OUR POSITION THAT A FAILURE ON THE PART OF THE GOVERNMENT TO SEND A PARTICULAR BIDDER OR FIRM A COPY OF AN INVITATION FOR BIDS OR A COPY OF AN AMENDMENT THERETO DOES NOT ORDINARILY REQUIRE EITHER A READVERTISEMENT FOR BIDS OR THE ACCEPTANCE OF A BID OR MODIFICATION THEREOF SUBMITTED AFTER THE TIME FIXED FOR OPENING OF BIDS. SEE 40 COMP. GEN. 126.

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