B-296961, Fort Mojave/Hummel, a Joint Venture, October 18, 2005

B-296961 Oct 18, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Fort Mojave/Hummel, a Joint Venture, protests the rejection of its bid submitted in response to invitation for bids (IFB) No. DOL 051RB20042, issued by the Department of Labor, for the construction of the new Job Corps Center in Cleveland, Ohio. Fort Mojave/Hummel's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. 1 to the IFB. We sustain the protest. View Decision B-296961, Fort Mojave/Hummel, a Joint Venture, October 18, 2005 Decision Matter of: Fort Mojave/Hummel, a Joint Venture File: B-296961 Date: October 18, 2005 Robert P. McManus, Esq., Taft, Stettinius & Hollister LLP, for the protester. Frank P. Buckley, Esq., Charles D. Raymond, Esq., and Harry L. Sheinfeld, Esq., Department of Labor, for the agency. John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency improperly rejected low bid as nonresponsive where the bid failed to acknowledge a solicitation amendment that merely clarified requirements already contained in the solicitation and otherwise had a negligible effect on the quality and price of the construction project bid upon. DECISION Fort Mojave/Hummel, a Joint Venture, protests the rejection of its bid submitted in response to invitation for bids (IFB) No. DOL 051RB20042, issued by the Department of Labor, for the construction of the new JobCorpsCenter in Cleveland, Ohio. Fort Mojave/Hummel's bid was rejected as nonresponsive because it did not contain an acknowledgment of amendment No. 1 to the IFB. We sustain the protest. The successful bidder under the IFB will be required to construct nine new buildings totaling approximately 190,997 gross square feet, including –three (3) 136 person Dormitories, an Administration-Medical/Dental building, a Recreation building, a Cafeteria building, an Education building, a Vocational Education building, and a Warehouse.— The buildings will be –located on a 24 acre parcel of undeveloped land,— with the successful bidder also being required to perform –miscellaneous site improvements in the form of general landscaping; earthwork; roads and walks; parking; drainage; water, sewerage, and gas utilities; electric ductbank; and site/security lighting for the new buildings.— IFB at 01010-1. One amendment to the IFB was issued prior to bid opening, which answered 28 bidder questions and clarified the period of performance. The agency received the following four bids by the bid opening date of May 26, 2005: Fort Mojave/Hummell $31,399,000 KBJ $31,764,000 Odyssey $34,779,000 New Era $34,900,000 Agency Report (AR), Tab 12, Bid Abstract. The agency found that Fort Mojave/Hummel's apparent low bid did not contain an acknowledgment of the amendment. The agency reviewed the amendment, and determined that although most of the matters in it were not material, it made two changes to the IFB that were material. The agency thus rejected Fort Mojave/Hummel's bid as nonresponsive. After filing an agency-level protest, which was denied, Fort Mojave/Hummel filed this protest with our Office, arguing that the amendment cannot properly be considered material and that its bid therefore should not have been rejected as nonresponsive. 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 not material and the failure to acknowledge it should be waived as a minor informality where the amendment has no effect or merely a negligible effect on the price, quantity, quality, delivery of the item bid upon, or no effect on the relative standing of the bidders. Federal Acquisition Regulation sect. 14.405(d)(2); Kalex Constr. & Dev., Inc., B-278076.2, Jan. 20, 1998, 98'1 CPD para. 25 at 2. Additionally, an amendment is not material where it does not impose any legal obligations on the bidder different from those imposed by the original solicitation; for example, where it merely clarifies an existing requirement or is a matter of form. Kalex Constr. & Dev., Inc., supra. Nevertheless, a procuring agency is not required to enter into a contract which presents the potential for litigation stemming from an ambiguity in a solicitation. ACC Constr. Co., B-277554, Sept. 22, 1997, 97-2 CPD para. 84 at 4. Rather, an agency has an affirmative obligation to avoid potential litigation by resolving solicitation ambiguities prior to bid opening, and amendments clarifying matters which could otherwise engender disputes during contract performance are generally material and must be acknowledged.