The Nutmeg Companies, Inc., B-277676, September 3, 1997

B-277676 Sep 03, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights It is clear from the acknowledgement that the bidder intended to comply with the solicitation requirements. Such that the submission of the unamended form was a minor informality that did not affect the bid's responsiveness. Nutmeg protests that Roads's bid was nonresponsive because it was submitted on an outdated and ambiguous Standard Form (SF) 1442. Whereas the SF 1442 only stated that the awardee was to post a performance bond. It provided that the contractor was to post both payment and performance bonds. That Roads's failure to use the revised SF 1442 was a minor informality that did not render Roads's bid nonresponsive. A bid must show on its face at the time of bid opening that it is an unqualified offer to comply with all the material requirements of the solicitation and that the bidder intends to be bound by the government's terms. View Decision Matter of: The Nutmeg Companies, Inc. File: B-277676 Date: September 3, 1997 DIGEST Attorneys DECISION The Nutmeg Companies, Inc. protests the award of a contract to Roads Corporation by the Department of the Air Force under invitation for bids (IFB) No. F19650-97-B-0011 for the installation of basement drainage systems in various housing units at Hanscom Air Force Base, Massachusetts. Nutmeg protests that Roads's bid was nonresponsive because it was submitted on an outdated and ambiguous Standard Form (SF) 1442. We dismiss the protest. The IFB, issued on June 18, 1997, contemplated the award of an indefinite delivery, indefinite quantity contract for a base year with 2 option years. The SF 1442 accompanying the IFB contained certain provisions that conflicted with each other or with other IFB requirements. Specifically, one provision of the SF 1442 stated a 60-day minimum bid acceptance period; another provision of the SF 1442 invited bidders to offer a longer bid acceptance period, but, in the blank meant to be completed by the bidder, the Air Force inserted a 30-day bid acceptance period, which obviously conflicted with the admonition that bids offering less than a 60-day acceptance period would be rejected. In addition, the SF 1442 stated a 45-day performance period, not the 1-year basic performance period provided elsewhere in the IFB. Finally, Section I of the IFB required the awardee to submit both payment and performance bonds, as mandated by the Miller Act, 40 U.S.C. Sec. 270a (1994), for construction contracts of this type, whereas the SF 1442 only stated that the awardee was to post a performance bond. On July 18, the agency issued Amendment No. 0001 to the IFB, which included a revised SF 1442 and stated "[replace] SF 1442 in original bid package with attached SF 1442." The revised SF 1442 corrected the various errors in the original SF 1442. In particular, it deleted the 30-day bid acceptance period mistakenly inserted by the Air Force; it deleted the reference to a 45-day performance period; and it provided that the contractor was to post both payment and performance bonds, consistent with Section I of the IFB and the Miller Act. At the July 25 bid opening, Roads submitted the apparent low bid and Nutmeg submitted the next low bid. Although Roads acknowledged Amendment No. 0001, Roads submitted its bid on the original SF 1442, not the revised SF 1442. The contracting officer determined that Roads, having acknowledged Amendment No. 0001, clearly intended to comply with the 60- day minimum bid acceptance period, the 1-year performance period, and the requirement to post both performance and payment bonds, and that Roads's failure to use the revised SF 1442 was a minor informality that did not render Roads's bid nonresponsive. Nutmeg protests that Roads's use of the unamended SF 1442 rendered its bid nonresponsive. To be responsive, a bid must show on its face at the time of bid opening that it is an unqualified offer to comply with all the material requirements of the solicitation and that the bidder intends to be bound by the government's terms, as set forth in the solicitation and any amendments. John P. Ingram, Jr. & Associates, Inc., B-250548, Feb. 9, 1993, 93-1 CPD Para. 117 at 3. Where the bid contains a provision which as completed by the bidder creates an ambiguity as to the bidder's intent to perform the work, as set forth in the solicitation and any amendments, the bid should be considered nonresponsive. Id. In contrast, where the bidder did not create an ambiguous provision already contained on outdated bid form originally contained in a solicitation and acknowledges a solicitation amendment clarifying the ambiguity and containing an amended bid form, the acknowledgement generally obligates the bidder to the solicitation requirements as substantively changed in the amendment, such that the bid should be considered responsive, even if it was submitted on the original bid form rather than the amended bid form. Walsky Constr.