Schuster Engineering, Inc.

B-275044 Jan 17, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The IFB was issued on August 23. The Army decided that the referenced standard and the associated "Grade 60" were obsolete. Which is the subject of this protest. Five bids were received as of the amended September 27 opening date. The next two lowest bids were: Schuster $2. The bid was rejected and award was made to Koch on September 30. Schuster essentially maintains that the amendment which it failed to acknowledge is not material because it constitutes only a relaxation of the original solicitation requirements. Schuster submits that its failure to acknowledge the amendment should have been waived. There is no precise rule for determining whether a change in requirements is more than negligible. View Decision Matter of: Schuster Engineering, Inc. File: B-275044 Date: January 17, 1997 DIGEST Attorneys DECISION Schuster Engineering, Inc. protests the rejection of its low bid under invitation for bids (IFB) No. DABT23-96-B-0061, issued by the Department of the Army for replacement windows in military housing units at Fort Knox, Kentucky. The protester asserts that the contracting officer improperly rejected Schuster's low bid for failing to acknowledge an immaterial solicitation amendment. We sustain the protest. The IFB was issued on August 23, 1996. Section 8A of the specification read in pertinent part: "Window units shall meet . . . performance requirements as specified in NWWDA I.S.2 [National Wood Window and Door Association Standard I.S.2]. Windows shall be Grade 60." In response to a September 13 letter from a potential supplier concerning section 8A of the specification, the Army decided that the referenced standard and the associated "Grade 60" were obsolete. As a result, on September 17, the agency issued amendment No. 0002, which is the subject of this protest, amending section 8A as follows: ". . . [a]ll NWWDA references shall be changed to current NWWDA IS2-93 standard with a minimum Grade DP [design pressure] 35." Five bids were received as of the amended September 27 opening date. Following the rejection of the lowest bid for failure to agree to the IFB's required bid acceptance period, the next two lowest bids were: Schuster $2,473,889 Koch Corporation $2,647,496 Schuster's bid did not acknowledge receipt of amendment No. 0002 and, as a result, the bid was rejected and award was made to Koch on September 30. Schuster filed this protest on October 10, within 10 days after award, and contract performance has been stayed pending the issuance of this decision. Schuster essentially maintains that the amendment which it failed to acknowledge is not material because it constitutes only a relaxation of the original solicitation requirements. Accordingly, Schuster submits that its failure to acknowledge the amendment should have been waived. For the reasons set forth below, we agree. Federal Acquisition Regulation (FAR) Sec. 14.405 provides that a contracting officer shall give a bidder an opportunity to cure a deficiency resulting from a minor informality or irregularity in its bid including the failure to acknowledge an amendment which has no, or merely a negligible, effect on such factors as the price or the quality of the item being acquired; in the alternative, the contracting officer may waive such a minor informality or irregularity. There is no precise rule for determining whether a change in requirements is more than negligible, Innovative Refrigeration Concepts, B-271072, June 12, 1996, 96-1 CPD Para. 277; rather, that determination is based on the facts of each case. Day and Night Janitorial and Maid and Other Servs., Inc., B-240881, Jan. 2, 1991, 91-1 CPD Para. 1. The mere fact that requirements have been changed by an amendment does not render the amendment material and does not, therefore, provide a basis for rejecting a bid that does not acknowledge the amendment. See L & R Rail Serv., B-256341, June 10, 1994, 94-1 CPD Para. 356 (protest sustained where agency did not provide support for its assertion that a change in requirements was material); Titan Mountain States Constr. Corp., B-183680, June 27, 1975, 75-1 CPD Para. 393. In other words, in cases where the record does not establish that price is meaningfully affected by an amendment, for the amendment to be material something about the change must reflect a legitimate minimum need of the agency such that its requirements will not be met if the contractor performs to the unamended specifications. See Doty Bros. Equip. Co., B-274634, Dec. 19, 1996, 96-2 CPD Para. 234 (rejection of an offer for failure to acknowledge an amendment which relaxed a solicitation requirement is improper); accord, Pro Alarm Co., Inc., 69 Comp.Gen. 727 (1990), 90-2 CPD Para. 242. Because it did not acknowledge amendment No.