B-299393, Northern Sealcoating & Paving, Inc., March 30, 2007

B-299393 Mar 30, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Northern Sealcoating & Paving, Inc. protests the rejection of its low bid as nonresponsive under invitation for bids (IFB) No. DTFH71-07-B-00001, issued by the Department of Transportation, Federal Highway Administration, for resurfacing, grading, drainage, and pavement reconstruction of Head of the Meadow Beach Road and Parking Area at the Cape Cod National Seashore, together with the optional installation of a restroom building at the site. We deny the protest. View Decision B-299393, Northern Sealcoating & Paving, Inc., March 30, 2007 Decision Matter of: Northern Sealcoating & Paving, Inc. File: B-299393 Date: March 30, 2007 Jay Zavala, Zavala Inc., for the protester. Julia L. Perry, Esq., Federal Highway Administration, for the agency. Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency properly rejected as nonresponsive a protester's bid that failed to acknowledge a material solicitation amendment; the amendment was material because it changed the color of exterior shingles, and specified the use of cedar lap siding and a color additive for concrete. DECISION Northern Sealcoating & Paving, Inc. protests the rejection of its low bid as nonresponsive under invitation for bids (IFB) No. DTFH71-07-B-00001, issued by the Department of Transportation, Federal Highway Administration, for resurfacing, grading, drainage, and pavement reconstruction of Head of the Meadow Beach Road and Parking Area at the Cape Cod National Seashore, together with the optional installation of a restroom building at the site. We deny the protest. The IFB, issued on November 22, 2006, included in addition to the basic resurfacing work, an option for the installation of a Romtec Model #1018 restroom facility. IFB sect. 646.04 at J-21. The IFB was amended on January 5, 2007 to: Revise the Special Contract Requirements (Section 646) to change the exterior building style for the ROMTEC restroom facility. Special Contract Requirement changes Delete the 2nd paragraph of Subsection 646.04 of the Special Contract Requirements, page J-22 and substitute the following: Amber colored shingles, cedar lap siding, brown concrete, smooth exterior, stainless toilet paper dispensers, and a polyethylene urinal. IFB amend. No.1, at 2. The original IFB required the following features for the Romtec restroom facility: –red shingles, gray concrete, smooth exterior, stainless toilet paper dispensers, and polyethylene urinal.— IFB sect. 646.04, at J-21. Thus, the amendment made three changes to the specifications--it changed the color of the exterior shingles from red to amber, added cedar lap siding and required the use of a color additive to the concrete. Four bids were received in response to the IFB by the January 9 bid opening. Protest, Exh. C. Northern submitted the apparent low bid, but failed to acknowledge receipt of amendment No. 001 prior to bid opening. Finding that the amendment affected performance of the contract, and the contractor's obligations under the contract, the agency rejected Northern's bid as nonresponsive for failure to acknowledge a material amendment. This protest followed. Northern protests that the amendment was not material since it was obligated under the terms of the IFB to provide Romtec's specific restroom facility model #1018, and argues that its failure to acknowledge the amendment was a minor informality that should have been waived since the amendment had no effect on price, quality, quantity or delivery. 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 CDP 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) sect. 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 sect. 14.405(d)(2); Specialty Contractors, Inc., supra, at 2. Here, while the original IFB specified the Romtec restroom facility model #1018, the record shows that this model comes with several options. For example, purchasers have the option of brown or gray concrete color, split-face or smooth exterior, and custom cedar, low or plank siding, or stucco or stone exteriors. Romtec Website, http://www.romtec.com.