BNUMBER:  B-277676 
DATE:  September 3, 1997
TITLE: The Nutmeg Companies, Inc., B-277676, September 3, 1997
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Matter of:The Nutmeg Companies, Inc.

File:     B-277676

Date:September 3, 1997

Jason L. Bugbee for the protester.
Anthony J. Buccitelli, Esq., for Roads Corporation, an intervenor.
John E. Lariccia, Esq., Department of the Air Force, for the agency.
Christine Davis, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Where the apparent low bidder submitted its bid on an outdated and 
ambiguous Standard Form (SF) 1442, but acknowledged an amendment 
transmitting a revised and unambiguous SF 1442, it is clear from the 
acknowledgement that the bidder intended to comply with the 
solicitation requirements, as clarified by the amendment, such that 
the submission of the unamended form was a minor informality that did 
not affect the bid's responsiveness.

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because it was submitted on an outdated and ambiguous Standard Form 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. 
Co., et al., B-216571 et al., May 17, 1985, 85-1 CPD  para.  562 at 3.

The facts of this case are virtually indistinguishable from those of 
Walsky.  In Walsky, the agency filled in a bid acceptance period on 
the SF 21 (a form similar to the SF 1442) in a manner which conflicted 
with the minimum bid acceptance period stated elsewhere in the IFB.  
The agency issued a corrected SF 21 through an IFB amendment, which 
stated that the revised SF 21 was "substituted for the superseded 
page(s)."  The low bidder in Walsky acknowledged the amendment, but 
submitted its bid on the original bid form with the erroneous bid 
acceptance period.  We found it reasonable to conclude that the low 
bidder had agreed to comply with the amended bid acceptance period and 
that the use of the old bid form was an oversight that did not render 
the bid nonresponsive.  In this regard, we noted that the low bidder 
did not itself fill in the erroneous bid acceptance period, and we 
determined that the revised form, with the proper bid acceptance 
period, was incorporated into the bid when the bidder acknowledged the 
amendment.

Here, while Roads submitted the wrong SF 1442 with its bid, Roads did 
not itself fill in the erroneous bid acceptance period, performance 
period, or bond requirements appearing in the SF 1442.  Cf. John P. 
Ingram, Jr. & Associates, Inc., supra (where a bidder filled in blanks 
on an outdated bid form that created ambiguity whether the bidder 
complied with the IFB requirements).  Rather, as the protester 
recognizes, "all of the errors were Government caused" on the SF 1442 
submitted with Roads's bid.  Consequently, consistent with Walsky, by 
acknowledging the amendment that clarified the ambiguities created by 
the original SF 1442, Roads incorporated the amended SF 1442 into its 
bid and obligated itself to comply with the 60-day bid acceptance 
period, the 1-year performance period, and the statutorily-mandated 
payment and performance bond requirements.

The protester's attempts to distinguish Walsky are unpersuasive.  
First, Nutmeg points out that this case involves three alleged defects 
in Roads's bid (the bid acceptance period, the performance period, and 
the bond requirements), whereas Walsky involved only one alleged 
defect in the apparent low bid (the bid acceptance period).  We see no 
reason to distinguish the instant case on this basis.  While the 
original SF 1442 in this case contained more ambiguities than the SF 
21 in Walsky, the fact remains that the Air Force introduced, and 
later clarified, each ambiguity in an amendment acknowledged by Roads.

Second, Nutmeg argues that the amendment issued in Walsky, which 
stated that the revised SF 21 was "substituted for the superseded" SF 
21, did not require bidders to submit the revised SF 21 with their 
bids, but implied that the revised form would be incorporated into 
their bids by acknowledging the amendment.  Id. at 3.  According to 
the protester, the amendment issued in this case, which advised 
bidders to "[replace] SF 1442 in original bid package with attached SF 
1442," required the use of the revised form and precluded its 
incorporation by acknowledging the amendment.  We see no meaningful 
difference between "substituting" the clarified form for the outdated 
form and "replacing" the outdated form with the clarified form.  In 
either case, a bidder that acknowledges an amendment transmitting the 
clarified form binds itself to the provisions of the clarified form 
and acknowledges that any contradictory terms established by the 
government on the outdated form are no longer valid, even if its bid 
is inadvertently submitted on that form.

Accordingly, we find that Roads's bid was responsive.

The protest is dismissed.

Comptroller General
of the United States