Navistar Marine Instrument Corporation, B-277143.2, February

B-277143.2 Feb 13, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights There is no evidence that agency did not comply with applicable regulations regarding the distribution of amendments. Three amendments to the RFP were issued. After determining that Atlas's proposal represented the best value and that Atlas was responsible. Navistar contends that its failure to acknowledge amendment No. 3 to the solicitation should be waived as a minor informality because the obligations set forth in the amendment were already included elsewhere in the solicitation. There is no precise rule for determining whether a change in requirements evidenced by an amendment is more than negligible. That determination is based on the facts of each case. An amendment that imposes a legal obligation upon an offeror different from those imposed by the original solicitation is material. View Decision Matter of: Navistar Marine Instrument Corporation File: B-277143.2 Date: February 13, 1998 DIGEST Attorneys DECISION Navistar Marine Instrument Corporation protests the rejection of its proposal for failing to acknowledge an amendment, and the award of a contract to Atlas Instrument Company, under request for proposals (RFP) No. N00104-97-R-ND97, issued by the Department of the Navy, for azimuth circles. We deny the protest. The RFP provided for the award of a firm, fixed-price contract to the offeror submitting the proposal most advantageous to the government, price and other factors considered. The RFP referenced detailed specifications for the items, and stated that first article tests would be required for any contractor unless the contractor could show evidence of prior approval. Three amendments to the RFP were issued. Amendments Nos. 1 and 2, issued May 8, and June 9, 1997, respectively, only extended the proposal due dates. Amendment No. 3, issued on June 16, added three clauses to the RFP, one of which concerned the obligations of the contractor relative to the first article test procedures. The Navy received proposals from Navistar, Atlas, and three other offerors. Two offerors, including Navistar, which submitted the lowest- priced proposal of $33,992, failed to return or otherwise acknowledge amendment No. 3. [1] The agency subsequently rejected Navistar's proposal for failing to acknowledge this amendment, and after determining that Atlas's proposal represented the best value and that Atlas was responsible, made award to that firm at its proposed price of $44,800. This protest followed. Navistar contends that its failure to acknowledge amendment No. 3 to the solicitation should be waived as a minor informality because the obligations set forth in the amendment were already included elsewhere in the solicitation. In support of this assertion, Navistar points out that the solicitation as issued required that the contractor perform production lot and first article testing, and required agency approval of the contractor's first article test procedures. There is no precise rule for determining whether a change in requirements evidenced by an amendment is more than negligible, such that the failure to acknowledge the amendment renders the proposal unacceptable; rather, that determination is based on the facts of each case. Doty Bros. Equip. Co., B-274634, Dec. 19, 1996, 96-2 CPD Para. 234 at 4. Generally, an amendment that imposes a legal obligation upon an offeror different from those imposed by the original solicitation is material, whereas an amendment that merely clarifies an existing requirement is not. See id.; Innovation Refrigeration Concepts, B-271072, June 12, 1996, 96-1 CPD Para. 277 at 2; Favino Mechanical Constr., Ltd., B-237511, Feb. 9, 1990, 90-1 CPD Para. 174 at 2. Navistar is correct that the clause set forth in amendment No. 3 required, as did the solicitation as issued, that the successful contractor submit a first article test plan or procedure to the agency for approval prior to the production of the items. However, the clause set forth in amendment No. 3, unlike the original solicitation, added that if the plan or procedure is not approved by the agency, "the contractor may be required at the option of the Government to submit a revised plan or procedure for evaluation" at no additional cost to the government, and that the agency may "require an equitable adjustment of the contract price for any extension of the [contract's] delivery schedule necessitated by resubmission of the plan or procedure." The clause further informed offerors that "the acquisition of materials or components for, or the commencement of production of the contract items (including first article samples) shall be at the sole risk of the contractor, and costs incurred on account thereof shall not be allocable to this contract . . .