Federal Construction, Inc., B-279638; B-279638.2, July 2,

Federal Construction, Inc., B-279638; B-279638.2, July 2, BNUMBER: B-279638; B-279638.2 DATE: July 2, 1998 TITLE: Federal Construction, Inc., B-279638; B-279638.2, July 2, 1998 ********************************************************************** Matter of:Federal Construction, Inc. File: B-279638; B-279638.2 Date:July 2, 1998 Abel Carreon for the protester. Robert E. Korroch, Esq., United States Coast Guard, for the agency. Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency properly rejected as nonresponsive bid that failed to include acknowledgment of a material solicitation amendment that affected contract performance by specifying the size and type of circuit breaker required by the agency, resolving solicitation ambiguity as to the actual circuit breaker required. DECISION Federal Construction, Inc. protests the rejection of its low bid as nonresponsive under invitation for bids (IFB) No. DTCGG1-98-B-QEE016, issued by the Department of Transportation, U.S. Coast Guard (USCG), for renovations to Chase Hall at the USCG Academy, New London, Connecticut. Federal's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. A0001, which the agency considered material. Federal contends that the amendment simply clarified solicitation terms and thus was not material; Federal asserts that its failure to acknowledge the amendment prior to bid opening should be waived as a minor informality. We deny the protest. The IFB, issued on February 13, 1998, was amended on March 6 to, among other things, add the following provision, regarding electrical wiring in the laundry room, to sheet 8 of 9 of IFB drawing No. CC-883-7050: Contractor shall provide new 200-amp circuit breaker (3-phase, 4-wire, 60-cycles) for new Laundry Room Circuit, to be compatible with existing General Electric (GE) switchgear. (Reference: GE breaker #TFJ236200). Contractor shall provide all materials and fittings for a complete circuit installation. Amendment No. A0001 at 2. The amendment was issued after a potential bidder pointed out that the IFB, as issued, did not identify the exact circuit breaker size or type required. Potential bidders were advised that the amendment had to be acknowledged and that failure to do so could result in rejection of the bid. Seven bids were received in response to the IFB by the March 16 bid opening. Federal submitted the apparent low bid of $85,219, but failed to acknowledge receipt of amendment No. A0001 prior to bid opening. Finding that the amendment affected performance of the contract and the contractor's obligations under the contract, the agency rejected Federal's bid as nonresponsive for failure to acknowledge a material amendment. This protest followed.[1] Federal protests that the amendment was not material since it only clarified the contractor's obligations under the contract, and that its failure to acknowledge the amendment should have been waived as a minor informality. 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. Specialty Contractors, Inc., B-258451, Jan. 24, 1995, 95-1 CPD para. 38 at 2. On the other hand, a bidder's failure to acknowledge an amendment that is not material is waivable as a minor informality. Federal Acquisition Regulation (FAR) sec. 14.405. An amendment is material where it imposes legal obligations on a prospective bidder that were not contained in the original solicitation or if it would have more than a negligible impact on price, quantity, quality, or delivery. FAR sec. 14.405(d)(2); Specialty Contractors, Inc., supra, at 2. The IFB included, as an attachment, "specification # 7050," a detailed work statement for the project which, at section 16140, paragraph 1.4A, regarding quality assurance for wiring devices, required contractor compliance with "NFPA 70, National Electrical Code" (NEC) provisions for devices and installation. According to the protester, the NEC dictates which size of circuit breaker is to be used for certain types of cables, and an experienced electrical contractor could deduce from the IFB's cable descriptions that a 200-amp or 225-amp circuit breaker would be required, depending on the cable involved.[2] Despite the reference to the NEC, however, at least one prospective bidder had questioned the IFB's failure to specify the exact size and type of circuit breaker required for the laundry room electrical wiring work. The agency issued amendment No.