Jackson Enterprises, B-286688, February 5, 2001

B-286688 Feb 05, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Jackson's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. 0004. The protester contends that the amendment was not in fact material. That its failure to acknowledge it should therefore have been waived as a minor informality. Which was issued on May 15. The IFB was amended four times after issuance. Six bids were received and opened on July 7. Gilesair was the low bidder. Jackson and Consultants Ltd. were second and third low. Jackson contends that the agency should have waived its failure to acknowledge amendment No. 0004 because the information contained in the amendment had no material impact on the price. An amendment is material. Only if it would have more than a trivial impact on the price. View Decision Matter of: Jackson Enterprises File: B-286688 Date: February 5, 2001 DIGEST Attorneys DECISION Jackson Enterprises protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. DAKF40-00-B-0008, issued by the Department of the Army for the cleaning of grit chambers, /1/ oil/water separators/interceptors, and holding tanks at various locations throughout Fort Bragg and Pope Air Force Base, North Carolina. Jackson's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. 0004, which the agency considered material. The protester contends that the amendment was not in fact material, and that its failure to acknowledge it should therefore have been waived as a minor informality. We sustain the protest. The IFB, which was issued on May 15, 2000, contemplated the award of a requirements contract for a 12-month base period and four 12-month option periods. The IFB requested unit prices (the unit being defined as a "cleaning") for estimated quantities of cleanings for various size tanks. For example, item No. 0007 sought a unit price for an estimated 36 cleanings of 12 tanks of 50-285 gallon capacity, while item No. 0010 sought a unit price for an estimated 12 cleanings of 4 tanks of 2,500-5,000 gallon capacity. An exhibit to the IFB furnished more detailed information as to the location of the various tanks, their types (e.g., grit chamber, oil/water separator), their specific capacities, and the number of cleanings per year that each would require. The IFB was amended four times after issuance. Amendment Nos. 0001 and 0002 answered questions posed by various prospective bidders and set dates for site visits, while amendment No. 0003 extended the bid opening date indefinitely. Amendment No. 0004 set the bid opening date as July 7 and answered additional bidder questions. Six bids were received and opened on July 7. Gilesair was the low bidder; Jackson and Consultants Ltd. were second and third low, respectively. The contracting officer rejected Gilesair's bid because the bidder had failed to extend its bid acceptance period. She then considered Jackson's bid and determined that it should also be rejected because the bidder had failed to acknowledge amendment No. 0004. /2/ On October 17, the contracting officer awarded a contract to Consultants as the lowest responsive, responsible bidder. Jackson contends that the agency should have waived its failure to acknowledge amendment No. 0004 because the information contained in the amendment had no material impact on the price, quality, or competitive status of the various bidders. The agency disputes the protester's position, arguing that the amendment did contain material information and that Jackson's failure to acknowledge it thus could not be waived. 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. Federal Constr., Inc., B-279638, B-279638.2, July 2, 1998, 98-2 CPD Para. 5 at 2. 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. Federal Acquisition Regulation (FAR) Sec. 14.405(d)(2); Kalex Constr. & Dev., Inc., B-278076.2, Jan. 20, 1998, 98-1 CPD Para. 25 at 2. An amendment is not material where it does not impose any legal obligations on the bidder different from those imposed by the original solicitation; that is, for example, where it merely clarifies an existing requirement or is a matter of form. Kalex Constr. & Dev., Inc., supra. A bidder's failure to acknowledge an amendment that is not material is waivable as a minor informality. FAR Sec. 14.405; Overstreet Elec. Co., Inc., B-283830, B-283830.2, Dec. 30, 1999, 2000 CPD Para.