Kalex Construction & Development, Inc., B-278076.2, January

B-278076.2 Jan 20, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Amendment is not material where it does no more than restate information already contained in the solicitation regarding the scope and quality of certain work. Contracting officer properly accepted bid that failed to acknowledge a solicitation amendment that was not material. Kalex contends that ABC's bid should have been rejected as nonresponsive because it failed to acknowledge an amendment to the IFB. The limits of sodding were also stated to be as required on the contract drawings. Was entitled "Bid Clarification" and provided the following: Several contractors have inquired about the extent of sodding required. This clarification is being issued to ensure that all contractors understand the governments intent. View Decision Matter of: Kalex Construction & Development, Inc. File: B-278076.2 Date: January 20, 1998 DIGEST Attorneys DECISION Kalex Construction & Development, Inc. protests the proposed award of a contract to ABC Landclearing/Tri-State Design (ABC), under invitation for bids (IFB) No. DACA01-97-B-0082, issued by the United States Army Corp of Engineers for basewide landscaping and signage at Homestead Air Reserve Base, Florida. Kalex contends that ABC's bid should have been rejected as nonresponsive because it failed to acknowledge an amendment to the IFB. We deny the protest. The IFB, issued on August 5, 1997, stated that the work consisted of landscaping buffers, streetscaping, pedestrian spine with landscaping, security lighting and signs for buildings and roadway intersections. The IFB required offerors to perform all work and furnish all plant, labor, equipment, and materials required by the specifications and the drawings. With respect to the sodding requirement, the IFB provided that the work would consist of solid sodding with St. Augustine "Floritam" or Bahia "Pensacola," as indicated on the contract drawings. The limits of sodding were also stated to be as required on the contract drawings. With respect to the lighting system, the IFB required that the lighting system be configured as specified by the drawings and that the system included all fixtures, hardware, poles, cables, connectors, adapters, and appurtenances needed to provide a fully functional lighting system. Amendment 0001, issued on August 25, revised the bid schedule and the explanation of bid items. Amendment 0002, issued on August 29, was entitled "Bid Clarification" and provided the following: Several contractors have inquired about the extent of sodding required. This clarification is being issued to ensure that all contractors understand the governments intent. This solicitation requires sodding in all areas designated to receive sodding as shown on the plan sheets (L-1 thru L-32) AND ADJACENT TO THE PEDESTRIAN SPINE as shown on detail sheet L-33; Typical Sod Installation for the Pedestrian Spine. The cost for this work shall be included in Bid Item No. 1. Likewise, all contractors shall bid on the electrical work as shown in the plans and specifications. Reuse of any existing fixtures shall not be permitted. Ten bids were received by the September 5 bid opening date. ABC submitted the lowest bid of $1,462,300 but failed to acknowledge amendment No. 0002. Kalex submitted the second low bid of $1,521,405. On September 26, Kalex filed an agency-level protest challenging the potential award to ABC on the grounds that ABC's bid should have been rejected as nonresponsive because it failed to acknowledge the amendment. On September 30, the agency denied the protest on the basis that the amendment was not material and that ABC's failure to acknowledge was properly waived as a minor informality. On October 9, Kalex filed this protest with our Office. Kalex contends that amendment No. 0002 was material because it clarified two patent ambiguities in the solicitation. Specifically, Kalex maintains that the scope of work for Bahia grass sod at the pedestrian spine was not indicated in the unamended solicitation and that the amendment defined the ability of the contractor to reuse existing light poles. Generally, a bidder's failure to acknowledge a material amendment to an IFB renders the bid nonresponsive, since absent such 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. Pittman Mechanical Contractors, Inc., B-225486, Feb. 25, 1987, 87-1 CPD Para. 218 at 3. An amendment is material, however, only if it would have more than a trivial impact on the price, quantity, quality, delivery, or the relative standing of the bidders. Id.; Federal Acquisition Regulation (FAR) Sec. 14.405(d)(2).