Lumus Construction, Inc., B-287480, June 25, 2001

B-287480 Jun 25, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest of award on basis that awardee failed to acknowledge solicitation amendment is denied where amendment provisions cited by protester merely clarified existing solicitation terms. Where any price difference attributable to those provisions is negligible. Failure to acknowledge an amendment that is not material may be waived as a minor informality. The protester contends that S&S's bid should have been rejected as nonresponsive because S&S failed to acknowledge an amendment to the solicitation. Was amended twice. Five bids were received at bid opening on October 12. 500 was second low. The agency determined that amendment No. 1 was not material and that S&S's failure to acknowledge it thus could be waived as a minor informality. View Decision Matter of: Lumus Construction, Inc. File: B-287480 Date: June 25, 2001 DIGEST Attorneys DECISION Lumus Construction, Inc. protests the award of a contract to S&S Mechanical Contractors under invitation for bids (IFB) No. N62472-00-B-7515, issued by the Department of the Navy for the replacement of a heating system at Portsmouth Naval Shipyard in Kittery, Maine. The protester contends that S&S's bid should have been rejected as nonresponsive because S&S failed to acknowledge an amendment to the solicitation. We deny the protest. The IFB, issued on August 22, 2000, was amended twice. Amendment No. 1 provided answers to bidders' questions and extended the bid opening date; amendment No. 2 further extended the opening date. Five bids were received at bid opening on October 12. S&S submitted the low bid of $269,500; Lumus's bid of $308,500 was second low. The S&S bid failed to acknowledge amendment No. 1. The agency determined that amendment No. 1 was not material and that S&S's failure to acknowledge it thus could be waived as a minor informality. On March 16, 2001, the agency awarded a contract under the IFB to S&S. This protest followed. Lumus generally contends that, since amendment No. 1 provided information that could affect a bidder's price, it is material, so that the awardee's failure to acknowledge the amendment cannot be waived. Specifically, the protester identifies two questions and answers (Q&A), Nos. 2 and 7, that were included in amendment No. 1 and which Lumus contends would have an effect on bid pricing. The first one cited by Lumus, Q&A No. 2, refers to a bidder's question about the meaning of a symbol (a small square with the letter P inside it) appearing on a schematic drawing included in the IFB; the agency responded that the symbol depicted a differential pressure switch. Amend. No. 1 at 2. The next Q&A cited by the protester, No. 7, relates to a bidder's inquiry as to the required distance of certain trench piping re-routing requirements; the agency responded that it was approximately 75 feet. Id. The protester argues that, because the agency's response in Q&A No. 2 calls for use of a differential pressure switch, which Lumus contends is a more expensive piece of equipment than a pressure gauge (elsewhere depicted on the same drawing by another engineering symbol, a small circle with the letter P inside it), the agency's response necessarily affects bid pricing and is thus material. Lumus argues that bid pricing is similarly affected by the agency response in Q&A No. 7, since the bidder will need to provide approximately 75 feet of piping. 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. A bidder's failure to acknowledge an amendment that is not material, however, may be waived as a minor informality. Federal Acquisition Regulation (FAR) Sec. 14.405. /1/ An amendment is not material if it would have only a negligible effect on the price, quantity, quality, or delivery of the item bid upon. FAR Sec. 14.405(d)(2). Further, an amendment is also not material where it does not impose any legal obligations on the bidder different from those imposed by the original solicitation; that is, where an amendment merely clarifies an existing requirement or is a matter of form, the failure to acknowledge the amendment should be waived and the bid should be accepted. Stanger Indus., Inc., B-279380, June 4, 1998, 98-1 CPD Para. 157 at 3; Kalex Constr. & Dev., Inc., B-278076.2, Jan. 20, 1998, 98-1 CPD Para. 25 at 2. Our review of the record does not support the protester's position that amendment No. 1's incorporation of Q&A Nos. 2 and 7 rendered that amendment material. Since the bidder was already obligated to provide the required heating system in accordance with the IFB's drawings, which drawings were merely clarified by the terms of Q&A Nos.