Doty Bros. Equipment Company

B-274634 Dec 19, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Reflected a minimum need and thus how the amendment was material. Which was issued on August 8. Competition was limited to four offerors based on the agency's determination that an unusual and compelling urgency required such a restriction. Offerors were to submit a firm. The RFP advised that the agency intended to make award to the responsible offeror whose conforming offer was most advantageous to the government considering price and other factors specified in the solicitation without conducting discussions. No "other factors" were specified elsewhere in the solicitation. Amendment No. 0001 was issued which modified the specification with respect to backfilling the excavation. The closing date was not extended by the amendment and the changes set forth in the amendment were described as "technical.". View Decision Matter of: Doty Bros. Equipment Company File: B-274634 Date: December 19, 1996 Agency improperly rejected low offer for failure to acknowledge a solicitation amendment where the agency has not identified how the amendment, which eased performance requirements, reflected a minimum need and thus how the amendment was material. Attorneys DECISION Doty Bros. Equipment Company protests the rejection of its low offer under request for proposals (RFP) No. N68711-96-R-2220, issued by the Department of the Navy for the construction of a replacement jet fuel pipeline in Los Angeles County, California. The protester asserts that the contracting officer improperly rejected Doty Bros.' low offer for failing to acknowledge an immaterial solicitation amendment. We sustain the protest. The RFP, which was issued on August 8, 1996, and closed on August 20, contemplated a contract for a construction project to replace a jet fuel pipeline including excavation, construction of a new line and removal of the old line, and backfilling the excavated areas. Competition was limited to four offerors based on the agency's determination that an unusual and compelling urgency required such a restriction. Offerors were to submit a firm, fixed price for the project and provide a completed set of standard representations and certifications. The RFP advised that the agency intended to make award to the responsible offeror whose conforming offer was most advantageous to the government considering price and other factors specified in the solicitation without conducting discussions; no "other factors" were specified elsewhere in the solicitation, hence the agency awarded on the basis of low price. On August 15, amendment No. 0001 was issued which modified the specification with respect to backfilling the excavation; the closing date was not extended by the amendment and the changes set forth in the amendment were described as "technical." Three offers were received as follows: Doty Bros. $778,019 ARB, Inc. $998,395 Offeror A $1,283,084 Doty Bros. was the only offeror that failed to acknowledge receipt of Amendment No. 0001 and, accordingly, on August 28, the agency wrote to the firm as follows, rejecting its offer and advising it of the award to ARB [1]: "This is to advise you that your offer does not conform to the subject solicitation due to a failure to [a]cknowledge Amendment 0001 which has a significant impact on the work to be performed." Upon receipt of the letter, Doty Bros. contacted the agency on September 11 and asserted that its failure to acknowledge amendment No. 0001 should have been viewed as a minor informality or irregularity, suggesting that the agency should have called for clarification. According to Doty Bros., the agency representative explained that, given the contracting office's work load, there was often not time to make confirming telephone calls and, further, that the failure to acknowledge the amendment could not be viewed as a minor informality which could be waived or cured later without entering into discussions with all offerors--something the RFP did not contemplate. This protest to our Office followed on September 13, with Doty Bros. reiterating the argument it had presented to the agency on September 11. In response, the agency has basically reiterated the position it communicated to Doty Bros. 2 days before the protest was filed. Prior to the issuance of the amendment in dispute, the RFP required that the excavated pipeline trench be backfilled to grade entirely with a mixture of cement, aggregate and water of a specified density known as "three-sack" slurry based on the amount of cement necessary to make a defined amount of the slurry mixture.