B-155414, NOV. 23, 1964

B-155414, NOV. 23, 1964

TO BLOCKSON AND COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1964, AND ENCLOSURES, PROTESTING AWARD OF CONTRACT TO F. P. WOLL AND COMPANY, UNDER INVITATION NO. DSA 4-65-292, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE CITED INVITATION FOR BIDS WAS ISSUED ON AUGUST 7, 1964, AND INVITED BIDS FOR SUPPLYING 22,090 SHEETS OF CUSHIONING MATERIAL, ITEM "A," TO THREE DESTINATIONS. THE DESTINATIONS CITED IN THE BID WERE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA (808 SHEETS), DEFENSE DEPOT TRACY (7,177 SHEETS), AND NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA (14,105 SHEETS). FOR THE REQUIREMENTS TO BE DELIVERED TO OAKLAND, ONLY F.O.B. DESTINATION BIDS WERE ACCEPTABLE. BIDS ON EITHER AN F.O.B. ORIGIN OR F.O.B. DESTINATION BASIS WERE ACCEPTABLE FOR THE BALANCE OF THE PROCUREMENT. BIDDERS COULD BID ON ALL OR ANY PART OF THE PROCUREMENT. ON AUGUST 11, 1964, THE INVITATION WAS AMENDED BY AMENDMENT 1, WHICH CORRECTED A MINOR TYPOGRAPHICAL ERROR IN THE INVITATION AND ADDED A DIFFERENT ITEM OF CUSHIONING MATERIAL (ITEM "B") FOR DELIVERY TO THREE DESTINATIONS. THEREAFTER, AMENDMENT 2 TO THE INVITATION WAS ISSUED ON AUGUST 25, 1964, AND HAD THE EFFECT OF INCREASING THE QUANTITY OF CUSHIONING MATERIAL (ITEM "A") TO 41,723 SHEETS. FIVE NEW DESTINATIONS WERE ADDED BUT THE THREE ORIGINAL DESTINATIONS WERE RETAINED. ONE OF THE DESTINATIONS, OAKLAND, STILL REQUIRED THE EXACT QUANTITY LISTED IN THE ORIGINAL INVITATION OR 808 SHEETS. THE QUANTITY FOR DEFENSE DEPOT TRACY WAS INCREASED TO 9,928 SHEETS AND THE QUANTITY FOR NORFOLK WAS INCREASED TO 16,798 SHEETS. BIDDERS COULD BID ON ALL OR ANY PART OF THE PROCUREMENT.

BIDS WERE OPENED ON SEPTEMBER 8, 1964. THREE BIDS WERE RECEIVED. BLOCKSON AND COMPANY AND AMERICAN LATEX FIBRE CORPORATION BID ON THE TOTAL PROCUREMENT. F. P. WOLL AND COMPANY DID NOT RETURN AMENDMENT 2. HOWEVER, IT DID SUBMIT AN F.O.B. ORIGIN BUD ON ITEM "A" USING THE ORIGINAL INVITATION FORM AND AN F.O.B. DESTINATION BID ON A PORTION OF ITEM "B" USING THE AMENDMENT 1 FORM. UNIT FREIGHT COSTS APPLICABLE TO THE F.O.B. ORIGIN PORTION OF ITEM "A" FOR THE THREE BIDDERS ARE AS FOLLOWS:

CHART

TRACY, NORFOLK, FOREST PARK, RICHMOND,

CALIF. VA. GA. VA.

BLOCKSON AND CO. $0.257041 $0.162384 $0.036706 $0.144994

AMERICAN LATEX

FIBRE CORP. 0.293849 0.070306 0.134967 0.068989

F. P. WOLL AND

COMPANY 0.293849 0.045302 0.0904478 0.041575

USING THE ABOVE FREIGHT COSTS IN EVALUATION, WOLL'S ORIGIN BID OF $0.84 PER UNIT ON ITEM "A" WOULD RESULT IN THE LOWEST LAID DOWN COST TO THE GOVERNMENT FOR ANY OF THE FOUR DESTINATIONS. IT IS ALSO NOTED THAT WOLL IS THE LOW BIDDER FOR THE TWO DESTINATIONS OF ITEM "B," AND THAT AMERICAN LATEX IS LOW BIDDER FOR THE OTHER DESTINATION OF ITEM "B.'

IT IS SHOWN IN THE RECORD THAT WOLL SUBMITTED ONLY AN F.O.B. ORIGIN BID ON ITEM "A" AND, ACCORDINGLY, COULD NOT BE CONSIDERED FOR THE SUBITEMS UPON WHICH ONLY F.O.B. DESTINATION BIDS WERE ACCEPTABLE. WHILE WOLL DID NOT PUT ANY MINIMUM OR MAXIMUM QUANTITY RESTRICTIONS ON ITS F.O.B. ORIGIN BID ON ITEM "A," ITS FAILURE TO RETURN OR ACKNOWLEDGE AMENDMENT 2 WAS CONSIDERED TO BE A FAILURE TO SUBMIT A BID ON THE ADDITIONAL QUANTITIES OF ITEM "A" ADDED TO THE INVITATION BY THAT AMENDMENT. ACCORDINGLY, ONLY THE EVALUATION POINTS LISTED IN THE ORIGINAL INVITATION WERE CONSIDERED IN DETERMINING WHETHER WOLL WAS THE LOW BIDDER FOR ANY PART OF ITEM "A.'

YOU CONTEND THAT THE FAILURE OF WOLL TO RETURN OR ACKNOWLEDGE AMENDMENT 2 TO THE SUBJECT INVITATION RENDERED ITS BID NONRESPONSIVE, AND ON SUCH BASIS REQUIRES REJECTION SUMMARILY BY THE CONTRACTING OFFICER.

THE GENERAL RULE IS THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF A PROCUREMENT, FAILURE OF A BIDDER TO ACKNOWLEDGE ITS RECEIPT RENDERS THE BID NONRESPONSIVE. 40 COMP. GEN. 48; 37 ID. 785. IN APPLYING THIS GENERAL RULE, HOWEVER, WE HAVE HELD THAT FAILURE TO ACKNOWLEDGE AN ADDENDUM WHICH DOES NOT GO TO THE SUBSTANCE OF THE BID AND WHICH DOES NOT PREJUDICE OTHER BIDDERS IS AN INFORMALITY WHICH MAY BE WAIVED. 34 COMP. GEN. 581.

IN THIS CASE, THE AMENDMENT FORM PROVIDES THAT FAILURE TO ACKNOWLEDGE THE AMENDMENT MAY RESULT IN REJECTION OF THE BID. THIS RESULT ENSUES, HOWEVER, ONLY IF THE FAILURE RENDERS THE BID NONRESPONSIVE TO THE TERMS OF THE INVITATION, AS AMENDED. THE PRIMARY QUESTION THEN TO BE CONSIDERED IS WHETHER AMENDMENT 2 AFFECTED THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT AND WHETHER THE BIDDERS WHO ACKNOWLEDGED AND RETURNED AMENDMENT 2 WERE PREJUDICED BY THE FAILURE OF WOLL TO RETURN AN ACKNOWLEDGED AMENDMENT 2.

WE STATED IN 40 COMP. GEN. 48 THAT THE BASIS FOR THE GENERAL RULE REQUIRING ACKNOWLEDGMENT OF AN ADDENDUM IS TO PREVENT A BIDDER FROM HAVING AN OPTION TO DECIDE AFTER BID OPENING WHETHER TO BECOME ELIGIBLE FOR AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF THAT A MATERIAL ADDENDUM HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. SUCH OPTION IS PRESENT IN THIS CASE AND WE AGREE WITH THE CONTRACTING OFFICER THAT INSOFAR AS THE F.O.B. ORIGIN QUANTITIES OF ITEM "A" SHOWN ON THE ORIGINAL INVITATION ARE WITHIN THE F.O.B. ORIGIN QUANTITIES OF ITEM "A" SHOWN ON AMENDMENT 2, THE GOVERNMENT HAS A VALID BID FROM F. P. WOLL AND COMPANY. THE BID SUBMITTED BY WOLL ON THE ORIGINAL INVITATION AND NOT WITHDRAWN COULD NOT BECOME INVALID BECAUSE WOLL DID NOT SUBMIT A BID ON ADDITIONAL QUANTITIES OF THE ITEM SINCE THE INVITATION AND AMENDMENTS PERMITTED A BID ON ALL OR ANY PART OF THE QUANTITIES INVOLVED. IN THAT CONNECTION SEE PARAGRAPH 8/C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS WHICH PROVIDES:

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.' THAT BEING THE CASE, NO ADVANTAGE IS GRANTED TO WOLL IN THE EVALUATION OF ITS BID AND NO PREJUDICE TO THE OTHER BIDDERS RESULTS. COMPARE 33 COMP. GEN. 508, 510; AND 41 ID. 631.

FOR THE REASONS STATED WE FIND NO LEGAL BASIS FOR OBJECTING TO THE INTENTION OF THE DEFENSE GENERAL SUPPLY CENTER TO CONSIDER THE BID OF F. P. WOLL AND COMPANY AS RESPONSIVE FOR A PROPOSED AWARD OF CONTRACT. ACCORDINGLY, YOUR PROTEST IS DENIED.