Precise Construction Management, B-278144.2, February 24,

B-278144.2 Feb 24, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST An agency properly waived as a minor informality a bidder's failure to acknowledge an amendment to a solicitation where the amendment is not material because it did not add any obligations or requirements. A change in one requirement could have had no more than a negligible effect on price. Precise Construction alleges that CDM's bid is nonresponsive. CDM's bid was the lowest at $295. 236 and Precise Construction's bid was second lowest at $309. CDM's bid did not acknowledge amendment No. 0003 to the IFB. [1] Precise Construction protested to our Office that CDM's bid was nonresponsive because the amendment was material. The agency determined that amendment No. 0003 was material and. View Decision Matter of: Precise Construction Management File: B-278144.2 Date: February 24, 1998 DIGEST Attorneys DECISION Precise Construction Management protests an award to C.D.M. Construction, Inc. under invitation for bids (IFB) No. N63387-97-B-5354, issued by the Department of the Navy, Public Works Center, for the replacement of barracks doors at the Marine Corps Recruit Depot, San Diego, California. Precise Construction alleges that CDM's bid is nonresponsive. We deny the protest. The agency received 18 bids in response to the IFB. CDM's bid was the lowest at $295,236 and Precise Construction's bid was second lowest at $309,500. CDM's bid did not acknowledge amendment No. 0003 to the IFB. [1] Precise Construction protested to our Office that CDM's bid was nonresponsive because the amendment was material. The agency determined that amendment No. 0003 was material and, on October 20, rejected CDM's bid as nonresponsive for failing to acknowledge the amendment. We therefore dismissed Precise Construction's protest as academic. By letter of October 24, CDM protested the rejection of its bid to the Navy. The agency verbally requested Precise Construction to verify its bid. By letter of November 12, Precise Construction did so. On December 1, the Navy met with Precise Construction, at which time the agency began discussing the issue of the materiality of amendment No. 0003. Precise Construction's representative stated that he was not prepared to discuss the terms of the amendment and requested a meeting at a later date, which was scheduled for December 9. By letter of December 2 to Precise Construction, the Navy stated that amendment No. 0003 was not material and that CDM's bid would be reinstated; this letter also confirmed the meeting scheduled for December 9. Precise Construction did not attend the meeting on December 9, but rather protested to our Office on December 12. As a preliminary matter, the Navy requests dismissal of the protest as untimely. The Navy alleges that it first informed the protester on December 1 of the Navy's decision to reinstate CDM's bid, and merely confirmed that decision in its letter of December 2. Since the protest was filed more than 10 days after December 1, the Navy contends that it is untimely. To be timely, protests not based upon alleged improprieties in a solicitation must be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. 4 C.F.R. Sec. 21.2(a)(2) (1997). Where doubt exists as to the timing of when a protester first should have known of a basis for protest, we will resolve such doubt in favor of the protester. Med-National, Inc., B-232646, Jan. 12, 1989, 89-1 CPD Para. 32 at 3. The protester states that the December 1 meeting was arranged after Precise Construction submitted its bid verification, and that it attended the meeting believing that it was to be a pre-award conference. Although the Navy's December 2 letter indicates that the agency advised Precise Construction during the December 1 meeting of the decision to reinstate CDM's bid, the protester contends that, on December 1, the agency raised the issue of the materiality of amendment No. 0003, but did not state that the agency had decided to reinstate CDM's bid. The protester alleges that it first learned of the agency's decision in the December 2 letter, which the protester received on December 3. The protester contends that it timely filed its protest within 10 days of receiving the letter. Prior to the agency submitting its report, our Office requested the Navy to submit either minutes of the December 1 meeting or statements recalling the content of that meeting from agency personnel who attended it. The agency has declined to do so. In contrast, the protester's comments on the agency report include a sworn statement from Precise Construction's representative at the meeting, in which he recalled the content of the meeting and specifically denied that the agency announced its decision to reinstate CDM's bid.