B-177747, APR 11, 1973

B-177747, APR 11, 1973

DECISION DENYING PROTEST AGAINST REJECTION OF BID UNDER SOLICITATION ISSUED BY GSA. ISSUES WERE ALLEGATIONS OF LOWEST BID; FAILURE TO RECEIVE AN AMENDMENT TO SOLICITATION; ALLEGATIONS OF WILLFUL CAUSATION OF CONFUSION BY GSA.

TO ACKLEY MANUFACTURING CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 2, 1973, PROTESTING AGAINST THE REJECTION OF YOUR BID ON ITEM NO. 20 (HYDRAULIC IMPACT WRENCH) UNDER SOLICITATION NO. FPNTP-B6-19382-A-9-15-72, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON AUGUST 4, 1972.

THE SOLICITATION COVERED A REQUIREMENTS CONTRACT FOR THE SUPPLY OF ESTIMATED AMOUNTS OF PNEUMATIC TOOLS FOR THE PERIOD FEBRUARY 1, 1973, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH JANUARY 31, 1974, AWARD TO BE MADE ON AN ITEM-BY-ITEM BASIS TO THE LOW, RESPONSIVE, RESPONSIBLE BIDDER. FIVE AMENDMENTS TO THE SOLICITATION WERE ISSUED. AMENDMENT NO. 1, THE SUBJECT OF THE PRESENT PROTEST, WAS INADVERTENTLY ISSUED ON JULY 26, 1972, NINE DAYS PRIOR TO THE ISSUANCE OF THE SOLICITATION, AMENDMENTS 2 THROUGH 5 BEING ISSUED SUBSEQUENT TO THE ISSUANCE OF THE SOLICITATION.

BIDS WERE OPENED ON OCTOBER 13, 1972. FOUR BIDS WERE RECEIVED FOR ITEM 20. THE BIDS OF BOTH THE LOW BIDDER, AKIN ENGINEERING COMPANY, AND YOUR FIRM, WHICH WAS THE SECOND-LOW BIDDER, WERE REJECTED AS NONRESPONSIVE. THE BASIS FOR THE REJECTION OF THE BID SUBMITTED BY YOUR FIRM WAS YOUR FAILURE TO ACKNOWLEDGE AMENDMENT NO. 1 WHICH SET FORTH A MINIMUM PERCENTAGE FOR THE RECLAIMED FIBER REQUIRED TO BE USED IN MANUFACTURING THE PACKING BOXES. AWARD OF A CONTRACT FOR ITEM 20 WAS MADE TO BOWEN- MCLAUGLIN-YORK COMPANY ON DECEMBER 21, 1972.

FIRST, YOU CONTEND THAT YOU WERE THE LOW BIDDER FOR ITEM 20. SECOND, YOU CONTEND THAT YOU NEVER RECEIVED AMENDMENT NO. 1 COVERING THE USE OF PACKING CONTAINERS MADE FROM RECYCLED CORRUGATED MATERIAL, WHICH YOU STATE IS A MINOR POINT OF THE CONTRACT AND ONE WHICH YOU STATE YOU WOULD HAVE AGREED TO, AND STILL WILL, AT NO CHARGE. THIRD, YOU CONTEND THAT YOUR FAILURE TO RECEIVE THE AMENDMENT WAS CAUSED BY THE FACT THAT AMENDMENT NO. 1 WAS SENT OUT BEFORE THE SOLICITATION WAS ISSUED. YOU FURTHER STATE THAT GSA MUST HAVE SUSPECTED THAT AN AMENDMENT PRECEDING THE SOLICITATION WOULD CAUSE CONFUSION, AND THEREFORE SHOULD HAVE CLARIFIED THE SITUATION BY ALSO INCLUDING AMENDMENT NO. 1 WITH THE SOLICITATION.

REGARDING YOUR CONTENTION THAT YOU WERE THE LOW BIDDER FOR ITEM 20, SECTION 1-2.407-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) DICTATES THAT AWARD BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, IS THE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THUS, NOT ONLY MUST THE BID BE LOW BUT IT MUST BE RESPONSIVE, I.E., CONFORM TO THE INVITATION REQUIREMENTS. IN THIS REGARD, IT HAS LONG BEEN THE POSITION OF THIS OFFICE THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE, PRIOR TO BID OPENING, RECEIPT OF AN AMENDMENT WHICH CONTAINS A MATERIAL REQUIREMENT RENDERS THE BID NONRESPONSIVE. THE BASIS FOR THIS RULE IS THAT GENERALLY THE BIDDER WOULD HAVE AN OPTION TO DECIDE SUBSEQUENT TO BID OPENING TO BECOME ELIGIBLE FOR AWARD BY FURNISHING EXTRANEOUS EVIDENCE THAT THE AMENDMENT HAD BEEN CONSIDERED OR TO AVOID AWARD BY REMAINING SILENT. IN THE PRESENT CASE, WE HAVE BEEN ADVISED BY GSA THAT IN ORDER TO IMPLEMENT THE PRESIDENT'S PROGRAM OF PROMOTING THE RECYCLING OF POST CONSUMER WASTE IN AN EFFORT TO ALLEVIATE THE SOLID WASTE DISPOSAL PROBLEM, GSA HAS ESTABLISHED A POLICY OF ENCOURAGING THE USE OF RECLAIMED FIBER IN PACKAGING MATERIALS USED IN CONNECTION WITH CONTRACTS AWARDED BY GSA. THIS POLICY IS EFFECTUATED BY INCORPORATING PROVISIONS SIMILAR TO THOSE SHOWN IN AMENDMENT NO. 1 INTO ALL APPLICABLE SOLICITATIONS. IT IS STATED IN THE ADMINISTRATIVE REPORT, A COPY OF WHICH WAS FURNISHED TO YOU, THAT AMENDMENT NO. 1 IS REGARDED AS PROVIDING A MATERIAL REQUIREMENT OF THE SOLICITATION. ALSO, IT IS NOTED THAT THE AMENDMENT, IN REFERRING TO THE REQUIRED MINIMUM PERCENTAGE OF RECLAIMED FIBER, SPECIFICALLY STATED THAT "PERCENTAGES WHICH ARE BELOW THE REQUIRED MINIMUM WILL RESULT IN REJECTION OF THE BID ON GROUNDS OF NONRESPONSIVENESS." THUS, IT IS OUR CONCLUSION THAT THE REJECTION OF YOUR BID FOR FAILURE TO ACKNOWLEDGE AN AMENDMENT WHICH THE RECORD INDICATES MATERIALLY AMENDED THE SOLICITATION WAS PROPER. 40 COMP. GEN. 126 (1960).

IT IS REGRETTABLE THAT YOUR FIRM DID NOT RECEIVE A COPY OF THE AMENDMENT. HOWEVER, THIS OFFICE HAS HELD THAT FAILURE OF A BIDDER TO RECEIVE A COPY OF AN AMENDMENT IS NOT SUFFICIENT BASIS FOR CANCELLATION OF AN INVITATION FOR BIDS WHERE, AS IN THE PRESENT CASE, ADEQUATE COMPETITION HAS BEEN OBTAINED AND THE PRICES ARE FAIR AND REASONABLE. B-166530, JULY 3, 1969. WHILE YOU CONTEND THAT GSA MUST HAVE SUSPECTED THAT THE AMENDMENT PRECEDING THE SOLICITATION WOULD CAUSE SOME CONFUSION, AND THEREFORE SHOULD HAVE CLARIFIED THE SITUATION BY INCLUDING THE AMENDMENT IN THE SOLICITATION, IT ALSO APPEARS THAT YOU WERE PLACED ON NOTICE WHEN YOU RECEIVED AMENDMENT NO. 2 THAT A PRIOR AMENDMENT (NO. 1) TO THE SOLICITATION HAD BEEN ISSUED. IN ANY EVENT WE FAIL TO SEE HOW YOUR SITUATION DIFFERS FROM THAT OF ANY OTHER BIDDER WHO IS NOT SENT AN AMENDMENT OR INVITATION. IN THAT SITUATION OUR OFFICE HAS CONSISTENTLY RULED THAT FAILURE TO PROVIDE AN INVITATION OR AMENDMENT TO A PROSPECTIVE BIDDER OR EVEN THE CURRENT CONTRACTOR, AS IN YOUR CASE, IS NOT SUFFICIENT BASIS FOR QUESTIONING AN OTHERWISE VALID AWARD IF THERE IS NO EVIDENCE OF AN INTENT TO EXCLUDE THE BIDDER. B 175199, MAY 19, 1972, AND DECISIONS CITED THEREIN.

FOR THE ABOVE REASONS YOUR PROTEST IS DENIED.