B-164743, SEPT. 19, 1968

B-164743, SEPT. 19, 1968

TO CATES CONSTRUCTION COMPANY, INC.:

WE REFER TO YOUR LETTER OF JULY 5, 1968, WITH ENCLOSURES, TO CONGRESSMAN EARLE CABELL, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. DACA63-68-B-0122, ISSUED BY THE U.S. ARMY CORPS OF ENGINEERS.

THE INVITATION FOR BIDS WAS ISSUED MAY 10, 1968, FOR THE CONSTRUCTION OF A PERSONNEL PROCESSING FACILITY AT LACKLAND AIR FORCE BASE, TEXAS. THE BID OPENING WAS SCHEDULED FOR 2 P.M., C.D.S.T., JUNE 12, 1968. THIS INVITATION WAS REVISED BY AMENDMENTS NOS. 0001 THROUGH 0005, ISSUED MAY 29, JUNE 3, JUNE 3, JUNE 5, AND JUNE 6, 1968, RESPECTIVELY. THE AMENDMENTS CARRIED THE IDENTICAL NOTATION READING AS FOLLOWS: "NOTICE: BIDDERS ARE REQUIRED TO ACKNOWLEDGE RECEIPT OF THIS AMENDMENT ON THE BID FORM IN THE SPACE PROVIDED, OR BY SEPARATE LETTER OR TELEGRAM PRIOR TO OPENING OF BIDS. FAILURE TO ACKNOWLEDGE ALL AMENDMENTS MAY CAUSE REJECTION OF THE BID.'

SIX BIDS WERE RECEIVED AND OPENED ON JUNE 12, 1968. YOUR BID OF $1,351,340 WAS THE LOWEST; HOWEVER, SINCE YOUR BID DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENTS, AND A BID ON THE REVISED BID FORM, INCLUDING ACKNOWLEDGMENTS, WHICH YOU STATE WAS MAILED BY YOU AT 8 P.M. ON JUNE 11 WAS NOT RECEIVED PRIOR TO THE BID OPENING TIME, YOUR BID WAS REJECTED. LETTER FROM YOU, POSTMARKED AT SAN ANTONIO, TEXAS, ON JUNE 11, 1968, PRESUMABLY CONTAINING THE REVISED BID FORM AND ACKNOWLEDGMENTS ARRIVED AT 8:45 A.M. ON JUNE 13, 1968. BY LETTER OF JUNE 17, 1968, THE CONTRACTING OFFICER NOTIFIED YOU AS FOLLOWS: "YOUR BID AS ORIGINALLY SUBMITTED HAS BEEN DETERMINED TO BE NON-RESPONSIVE TO THE INVITATION. THE FIVE AMENDMENTS TO THE INVITATION HAVE BEEN DETERMINED TO BE MATERIAL AND FAILURE TO ACKNOWLEDGE THEM PRIOR TO OPENING OF BIDS CANNOT BE WAIVED. VIEW OF THE FOREGOING YOUR BID IS HEREBY REJECTED.'

YOU CONTEND THAT THE FAILURE OF THE CORPS OF ENGINEERS TO MAIL YOU THE FIVE AMENDMENTS CAUSED THE REJECTION OF YOUR BID, AND ALSO THAT YOUR SECOND BID WITH ACKNOWLEDGMENTS WAS MAILED IN AMPLE TIME TO HAVE BEEN RECEIVED BEFORE BID OPENING. YOU STATE THAT YOU WERE ADVISED OF THE ISSUANCE OF THE AMENDMENTS ONLY TWENTY-FOUR HOURS PRIOR TO BID OPENING TIME. DUE TO THE SHORT TIME REMAINING, YOU SENT A MESSENGER TO PICK UP THE AMENDMENTS, PROCESSED THEM THE SAME DAY, AND MAILED YOUR REPLY BY 8:00 P.M.; HOWEVER, YOU WERE UNABLE TO REGISTER OR CERTIFY YOUR LETTER, BECAUSE THE SAN ANTONIO POST OFFICE WAS CLOSED AT THAT TIME. YOU FURTHER CONTEND THAT SINCE THESE AMENDMENTS HAD NO EFFECT ON THE BID PRICE, THE LATE ARRIVAL OF YOUR ACKNOWLEDGMENT CONSTITUTED A MERE TECHNICALITY WHICH COULD HAVE BEEN WAIVED.

THE ESTABLISHED RULE IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS PRICE, QUANTITY OR QUALITY OF THE ITEMS BEING PROCURED, FAILURE OF THE BIDDER TO ACKNOWLEDGE THE AMENDMENT IN THE MANNER REQUIRED CANNOT BE WAIVED. SEE 42 COMP. GEN. 490; 37 COMP. GEN. 785; B-156157, MARCH 29, 1965; B-157779, DECEMBER 15, 1965.

WHILE DECISIONS OF OUR OFFICE, AS WELL AS THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 PERMIT THE WAIVER OF MINOR INFORMALITIES AND IRREGULARITIES IF THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, APPLICATION OF THIS EXCEPTION IS LIMITED TO CASES WHERE THE ACTUAL OR ESTIMATED AMOUNT IS ONLY A VERY FEW DOLLARS. SEE OUR DECISION OF MAY 27, 1965, B-156607, IN WHICH WE STATED:

"IT IS CLEAR FROM THE ABOVE SUMMARY THAT WE HAVE NEVER APPROVED WAIVER IN SUCH CIRCUMSTANCES AS ARE HERE PRESENT WHERE THE MAXIMUM POSSIBLE AMOUNT OF DEVIATION WAS AS MUCH AS $200.00. * * *

"* * * ON THE OTHER HAND, WE WOULD NOT BE INCLINED IN THE ORDINARY CASE TO CONSIDER A POSSIBLE DEVIATION OF $1,000.00 OR MORE AS TRIVIAL OR INSIGNIFICANT IN THE AREA UNDER CONSIDERATION, NO MATTER HOW SMALL A FRACTION OF THE TOTAL COST OR BID DIFFERENCE IT MIGHT BE.'

WITH RESPECT TO THE PROCUREMENT HERE UNDER CONSIDERATION, THE ADMINISTRATIVE REPORT STATES:

"* * * THE NET EFFECT OF THE CHANGES INCLUDED IN AMENDMENT 0002 AMOUNTS TO AN ESTIMATED INCREASE IN PRICE OF $2,083. THIS IS ARRIVED AT BY USING THE UNIT PRICES INCLUDED IN CATES BID. HOWEVER, A FURTHER SUBMISSION INCLUDED IN THE FILE (EXHIBIT I TO THE REPORT) SHOWS THAT THE GOVERNMENT'S INDEPENDENT ESTIMATE OF ALL FIVE AMENDMENTS TO THE INVITATION SHOWS THAT THE NET OVERALL INCREASE IN PRICE AMOUNTED TO $1,783.81. REGARDLESS OF WHICH FIGURE IS USED, THE FAILURE OF CATES TO ACKNOWLEDGE RECEIPT OF ANY AMENDMENT PRIOR TO BID OPENING MAKES ITS BID NONRESPONSIVE SINCE SUCH AMENDMENTS HAVE A MATERIAL EFFECT ON PRICE.'

IN VIEW OF THE FOREGOING STATEMENT, WE MUST CONCUR WITH THE ADMINISTRATIVE CONCLUSION THAT FAILURE TO ACKNOWLEDGE THE AMENDMENTS MAY NOT BE WAIVED AS A MINOR INFORMALITY.

TURNING TO YOUR ALLEGATION THAT THE CORPS OF ENGINEERS FAILED TO MAIL YOU THE AMENDMENTS, THE CONTRACTING OFFICER REPORTED THAT RECORDS OF THE PROCURING OFFICE INDICATE THAT THE AMENDMENTS WERE IN FACT MAILED TO YOU. IN ANY EVENT, IT APPEARS THAT YOU HAD THEM WITHIN TIME TO HAVE HAD YOUR ACKNOWLEDGMENT DELIVERED BEFORE BID OPENING, AND YOU IN FACT CLAIM THAT YOUR ACKNOWLEDGMENT WAS MAILED IN TIME TO HAVE BEEN RECEIVED BEFORE OPENING. CONSIDERATION ON THAT GROUND IS, HOWEVER, CLEARLY PRECLUDED BY THE SPECIFIC PROVISIONS OF SECTION 2-203.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (INCLUDED IN THE SUBJECT INVITATION AS ARTICLE 7 OF THE INSTRUCTIONS TO BIDDERS, STANDARD FORM 22) WHICH AUTHORIZE CONSIDERATION OF LATE MAILED BIDS ONLY IF THEY ARE SENT BY REGISTERED OR CERTIFIED MAIL.

AS ADDITIONAL GROUNDS FOR YOUR PROTEST, YOU CONTEND THAT ROB-T. L. GUYLER COMPANY (TO WHICH AWARD WAS MADE) SUBMITTED A LATE MODIFICATION TO ITS ORIGINAL BID, WHICH WAS IMPROPERLY CONSIDERED BY THE CORPS OF ENGINEERS IN CONNECTION WITH THE AWARD. ACCORDING TO THE ADMINISTRATIVE REPORT, THE THREE PAGE TELEGRAM AMENDING THE GUYLER BID WAS RECEIVED AT 2:01 P.M., JUNE 12, 1968, ONE MINUTE AFTER THE START OF THE BID OPENING. THE TELEGRAM WAS FILED BY ROB-T. L. GUYLER COMPANY WITH WESTERN UNION IN LAMPASAS, TEXAS, AT 12:40 P.M., ONE HOUR AND TWENTY MINUTES BEFORE THE BID OPENING TIME. WESTERN UNION REPORTED THAT IT HAD MADE ERRORS IN THE TRANSMISSION OF THE TELEGRAM, AND DELIVERY TO THE CORPS OF ENGINEERS WAS DELAYED UNTIL THE ERRORS WERE CORRECTED, AND ADVISED THE CONTRACTING OFFICER THAT: "UNDER NORMAL CIRCUMSTANCES YOU WOULD HAVE RECEIVED THE WIRE BEFORE THE 2 P.M. DEADLINE.' IN LIGHT OF THIS, THE TELEGRAPHIC MODIFICATION OF THE GUYLER BID WAS CONSIDERED FOR THE AWARD BY THE CONTRACTING OFFICER.

OUR DECISION OF AUGUST 19, 1966, B-159408, SETS FORTH THE CRITERIA AS TO WHETHER A TELEGRAPHIC BID MODIFICATION RECEIVED LATE IS ACCEPTABLE, BY STATING:

"FIRST, THE BID MODIFICATION MUST HAVE BEEN FILED WITH THE TELEGRAPH COMPANY IN TIME FOR RECEIPT BY BID OPENING TIME BY NORMAL TRANSMISSION PROCEDURE. SECOND, THERE MUST BE A SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER. THIRD, THE DELAY IN TRANSMISSION MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY ENCOUNTERED UNDER NORMAL TELEGRAPHIC PROCEDURES. 40 COMP. GEN. 290; 39 COMP. GEN. 586.'

WE BELIEVE THAT THE INFORMATION BEFORE US ESTABLISHES THAT THE TELEGRAPHIC MODIFICATION WAS FILED AT WESTERN UNION IN AMPLE TIME TO HAVE BEEN RECEIVED UNDER NORMAL CONDITIONS PRIOR TO BID OPENING; THAT THE DELAY WAS DUE SOLELY TO WESTERN UNION, AND LASTLY, THAT THE DELAY WAS DUE TO ABNORMAL DELAYS OCCURRING DURING THE TRANSMISSION PROCEDURE. SEE B- 159911, SEPTEMBER 16, 1966; B-161210, JUNE 14, 1967; B-157832, NOVEMBER 9, 1965; B-160455, DECEMBER 2, 1966.

IN THE CIRCUMSTANCES, SINCE WE CONCUR WITH THE ADMINISTRATIVE DETERMINATION THAT YOUR BID IS NONRESPONSIVE AND FIND NO LEGAL BASIS FOR OBJECTING TO THE AWARD AS MADE TO ROB-T. L. GUYLER COMPANY, YOUR PROTEST IS DENIED.