ACC Construction Co., Inc., B-277554, September 22, 1997

B-277554 Sep 22, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights ACC's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. 0005. ACC contends that the amendment was not material and that the failure to acknowledge it should be waived as a minor informality. The IFB was issued on March 13. Bids were opened on May 13. 401 was rejected after it was found not to contain an acknowledgment of amendment No. 0005. Bidders were to offer the agency the option of a gravel or a paved military equipment parking area. Drawing C10 was revised by amendment No. 0005 to include a diagram specifying 8 inches of gravel. Under original drawing C3 the measurements for the vehicle washrack in the parking area were shown to be 25 feet by 38 feet. View Decision Matter of: ACC Construction Co., Inc. File: B-277554 Date: September 22, 1997 DIGEST Attorneys DECISION ACC Construction Co., Inc. protests the rejection of its low bid under a Department of the Army invitation for bids (IFB) No. DACA21-97-B-0012, issued for construction work at the United States Army Reserve Center, Ft. Bragg, North Carolina. ACC's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. 0005, which the agency considered material. ACC contends that the amendment was not material and that the failure to acknowledge it should be waived as a minor informality. We deny the protest. The IFB was issued on March 13, 1997. Bids were opened on May 13. ACC's low bid of $10,158,401 was rejected after it was found not to contain an acknowledgment of amendment No. 0005. The agency considered the amendment to be material in view of its effect on the legal obligations of the contracting parties and the estimated $155,614 in additional costs associated with the revisions contained in the amendment. Amendment No. 0005 basically addressed four areas of work. First, under the IFB, bidders were to offer the agency the option of a gravel or a paved military equipment parking area. Drawing C10 of the IFB showed a requirement of 9 inches of aggregate base with a 3-inch layer of bituminous surface for the paved parking area. However, the drawing contained no specifications showing the base and surface of the gravel parking area, should the agency decide to procure the gravel parking area. Drawing C10 was revised by amendment No. 0005 to include a diagram specifying 8 inches of gravel. Second, under original drawing C3 the measurements for the vehicle washrack in the parking area were shown to be 25 feet by 38 feet, but in original drawing C17, the same area was specified as 45 feet by 70 feet. The amendment corrected this discrepancy by conforming the measurements in drawing C3 to 45 feet by 70 feet. Third, the original IFB contained a kitchen equipment schedule listing 38 items. For most of items 1 through 25, the agency provided the pertinent information needed to bid the items (there were no items numbered 26 or 27). However, for items 28 through 40, the IFB stated that the government was awaiting more detailed information. Amendment No. 0005 supplied this information on items 28 through 40 (and deleted two items). The amendment also added information designating acceptable brands/models for some of items 1 through 25 and added five new required items (42 through 46). Fourth, a rock dam and silt fencing were added to the environmental protection requirements established under the original IFB. [1] ACC contends that amendment No. 0005 only clarified requirements that were already contained in the IFB and did not affect the legal obligations of the contracting parties. Also, ACC argues that the agency overstated the amendment's cost impact. Federal Acquisition Regulation Sec. 14.405 permits the contracting officer to waive, or allow a bidder to cure, a minor informality or irregularity in a bid, including the failure to acknowledge an amendment which has no, or merely a negligible, effect on the price, quality, or quantity of the goods or services being procured. There is no precise rule for determining what is negligible, Innovative Refrigeration Concepts, B-271072, June 12, 1996, 96-1 CPD Para. 277 at 2; 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 at 4. Where an amendment has more than a negligible impact on the price, quantity, quality, or delivery of the items or services bid upon or on the bidder's legal obligation to perform in accordance with the IFB, it is material and the failure to acknowledge the amendment must result in the rejection of the bid as nonresponsive since, absent an acknowledgment, the government's acceptance of the bid would not legally obligate the bidder to meet the government's needs as identified in the amendment. DeRalco, Inc., B-232989, Dec. 8, 1988, 88-2 CPD Para.