BNUMBER:  B-261241
DATE:  September 5, 1995
TITLE:  The Hackney Group

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Matter of:     The Hackney Group

File:          B-261241

Date:          September 5, 1995
                                                           
Shelly L. Ewald, Esq., Watt, Tieder & Hoffar, for the protester.
Janet N. Repka, Esq., and William E. Brazis, Esq., Washington 
Headquarters Services, Department of Defense, for the agency.
Glenn G. Wolcott, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.
                                                           
DIGEST

1.  Bidders are responsible for the timely delivery of their bids and 
amendments, and late delivery generally requires the bid's rejection.

2.  Where solicitation contained drawings which reflected differing 
amounts of work to be performed, an amendment which eliminated the 
inconsistency and, thereby, clearly obligated the winning bidder to 
perform all required work at the contract price, was material and 
bidders were required to acknowledge it prior to bid opening.
                                                           
DECISION

The Hackney Group protests the rejection of its bid for failure to 
acknowledge amendment No. 0005 to invitation for bids (IFB) No. 
MDA946-95-BA007, issued by the Department of Defense, Washington 
Headquarters Services, for roof replacement at Federal Building No. 2 
(the "Navy Annex") in Arlington, Virginia.[1]  Hackney asserts that 
its facsimile acknowledgment, sent prior to bid opening, or its mailed 
acknowledgment, received after bid opening, should have rendered its 
bid responsive; alternatively, Hackney argues that the amendment was 
not material and that the agency should have waived the failure to 
acknowledge.

We deny the protest.

BACKGROUND

The agency issued this solicitation on February 21, 1995, seeking 
firm, fixed-price bids for the removal and replacement of the Navy 
Annex's existing roof.  As part of the work, the solicitation required 
removal of existing asbestos.  The solicitation package contained 
three asbestos drawings (numbered AB-1 through AB-3 and labeled 
"Hazardous Material Abatement - Partial Roof Plan") which identified 
the specific portions of the roof from which asbestos would have to be 
removed.  Each asbestos drawing stated that it was drawn to a scale 
under which one-sixteenth of an inch represented 1 foot; the asbestos 
drawings did not list actual dimensions in numeric form.  The 
solicitation package also contained architectural drawings (numbered 
A-1 through A-7) to be used in connection with the other demolition 
and replacement tasks.  The architectural drawings similarly stated 
that they were drawn to a scale under which one-sixteenth of an inch 
represented 1 foot; in addition, the architectural drawings provided 
numeric dimensions for the perimeter of each wing of the Navy Annex.  
Finally, the solicitation package contained an overall site plan 
(numbered SP-1), which was drawn to a smaller scale than either the 
asbestos drawings or the architectural drawings;[2] this drawing also 
contained numeric dimensions for the perimeter of the building.

As part of the solicitation requirements, offerors were advised that 
the asbestos removal work would have to be performed by a certified 
asbestos removal company; thus, prime contractors who were not so 
qualified were required to obtain subcontractor bids for the asbestos 
removal work.  On March 15, a potential bidder advised the agency that 
various asbestos subcontractors were providing it with differing 
quotations based on differing square footage amounts of asbestos 
removal work to be performed.  The bidder noted that calculation of 
the asbestos removal area from the asbestos drawings resulted in a 
smaller area than calculation of the same area from either the 
architectural drawings or the site plan.

Upon reviewing the drawings, the agency determined that the asbestos 
drawings were inaccurate.  Specifically, the contracting officer 
concluded that application of the scale provided on the asbestos 
drawings resulted in an understatement of the asbestos removal work by 
between 10,000 and 20,000 square feet.  The contracting officer 
further determined that the scale and dimensions contained in the 
architectural drawings and the site plan drawing accurately reflected 
the actual dimensions.  Accordingly, on March 31, the agency issued 
amendment No. 0005 which stated:

     "All contractors shall note that the HAZARDOUS MATERIAL ABATEMENT 
     - PARTIAL ROOF PLAN drawings AB-1, AB-2, and AB-3 are published 
     at a slightly smaller scale than the 1/16" = 1'0" indication 
     noted on the plans.  The actual dimensions for the roof shall be 
     as numerically labeled and shown on the Site Plan sheet SP-1, the 
     architectural drawings A-1 thorough A-7 and the details as 
     described throughout the remainder of the set."

On April 5, Hackney telecopied an acknowledgment of amendment No. 0005 
to the agency.  That same day, the agency contacted Hackney by 
telephone to remind it that the solicitation did not permit submission 
of bids or acknowledgment of amendments by facsimile.  Hackney 
subsequently mailed an acknowledgment of the amendment to the agency; 
that acknowledgment was not received until 3 days after bid opening.
 
Bid opening took place on April 10.  At that time, Hackney was 
determined to be the low bidder at $1,690,000.  The second-low bidder 
submitted a bid of $1,837,600.[3]  Upon review, the agency determined 
that Hackney's low bid was nonresponsive for failure to acknowledge 
amendment No. 0005; the contract was subsequently awarded to the 
second-low bidder.  This protest followed.

DISCUSSION

Hackney first argues that its bid should have been found responsive 
based on either the facsimile acknowledgment of amendment No. 0005 
sent prior to bid opening, or the mailed acknowledgment which the 
agency received after bid opening.  We disagree.

Generally, a bid which does not include an acknowledgment of a 
material amendment must be rejected because, absent such an 
acknowledgment, the bidder is not obligated to comply with the terms 
of the amendment, and its bid is thus nonresponsive.  Tri-Tech Int'l, 
Inc., B-246701, Mar. 23, 1992, 92-1 CPD  304.  Bidders are 
responsible for the timely delivery of their bids and amendments, and 
late delivery generally requires the bid's rejection.  MAPA Pioneer 
Corp., B-231517, Sept. 13, 1988, 88-2 CPD  232.

Hackney does not dispute that the provisions of the solicitation did 
not permit submission of bids or amendments by facsimile; neither does 
Hackney dispute that the agency specifically called its attention to 
this matter on April 5, after Hackney's facsimile was sent.  
Accordingly, Hackney's facsimile transmission did not constitute 
acknowledgment of the amendment.  See Recreonics Corp., B-246339, Mar. 
2, 1992, 92-1 CPD  249; Mabuhay Bldg. Maintenance Co., Inc., 
B-241908, Nov. 23, 1990, 90-2 CPD  424.  

There is also no dispute that Hackney's mailed acknowledgment was not 
received by the agency until after bid opening.  To be effective, an 
acknowledgment must be submitted prior to bid opening.  Ira Gelber 
Food Servs., Inc., 55 Comp. Gen. 599, 601 (1975), 75-2 CPD  415; 
Navaho Corp., B-192620, Jan. 16, 1979, 79-1 CPD  24.  A bid that is 
nonresponsive may not be made responsive after bid opening because the 
bidder would have the competitive advantage of choosing to accept or 
reject the contract after bids are exposed.  Avantek, Inc., B-219622, 
Aug. 8, 1985, 85-2 CPD  150.  Here, Hackney's mailed acknowledgment, 
received after bid opening, did not provide a basis for accepting its 
bid.

Hackney alternatively asserts that its failure to timely acknowledge 
amendment No. 0005 should have been waived as a minor informality.  
Hackney contends that, because the architectural drawings and site 
plan indicated the actual roof dimensions, amendment No. 0005 merely 
clarified the solicitation's existing requirements and thus did not 
reflect a material change.  We disagree.

The Federal Acquisition Regulation (FAR) provides that an amendment is 
material where it would have more than a negligible impact on price, 
quantity, quality, or delivery of the item solicited.  See FAR  
14.405(d)(2).  No precise rule exists to determine whether a change 
required by an amendment is more than negligible; rather, that 
determination is based on the facts of each case.  Central Atl. 
Contractors, Inc., B-243663, Aug. 14, 1991, 91-2 CPD  146.

Here, the asbestos drawings--which were included in the solicitation 
package for the sole purpose of identifying the portions of the roof 
where asbestos would have to be removed--understated the amount of 
work that bidders could expect to perform.  Thus, the specific drawing 
on which offerors were expected to rely in preparing the asbestos 
removal portion of their bids provided inaccurate and misleading 
dimensions.[4]  Further, prior to issuing amendment No. 0005, the 
agency was on notice of both the error and the fact that bidders were 
relying to their detriment on the inaccurate drawing.  The agency 
issued amendment No. 0005 to ensure that all offerors were preparing 
their bids on an equal basis and to prevent this matter from becoming 
a subject of dispute during contract performance.

A procuring agency is not required to enter into a contract which 
presents the potential for litigation stemming from an ambiguity in 
the solicitation.  Air Quality Experts, Inc., B-256444, June 15, 1994, 
94-1 CPD  374.  Rather, an agency has an affirmative obligation to 
avoid potential litigation by resolving solicitation ambiguities prior 
to bid opening.  Amendments clarifying matters which could otherwise 
engender disputes during contract performance are generally material 
and must be acknowledged.  Id.

Here, it is clear the agency had a legitimate basis for its concern 
that the inconsistency between the drawings could result in the 
submission of bids based on inaccurate data and, subsequently, form 
the basis for a dispute between the parties.  See, e.g., Sommers Bldg. 
Co., Inc., ASBCA No. 32232, 86-3 BCA  19,223 (1986) (dispute between 
agency and contractor based on inconsistent specifications).  In the 
absence of the amendment, the winning contractor ultimately could have 
argued that it was entitled to a price increase because the asbestos 
drawings inaccurately indicated the likely amount of asbestos to be 
removed.  Thus, the amendment did more than clarify agency 
requirements--it established as clearly as the agency could what the 
actual dimensions of the asbestos removal area would be, thereby 
obligating the winning bidder to remove all asbestos discovered at the 
contract price.[5]  Accordingly, the amendment was material and the 
agency properly rejected Hackney's bid for failure to acknowledge a 
material amendment.

The protest is denied. 

 \s\ Ronald Berger
 for Robert P. Murphy
     General Counsel

1. Hackney also failed to acknowledge amendment No. 0004, which it 
similarly asserts did not constitute a valid basis for rejecting its 
bid.  In light of our conclusion that the agency properly rejected 
Hackney's bid for failing to acknowledge amendment No. 0005, we need 
not discuss its failure to acknowledge amendment No. 0004.

2. The site plan drawing was drawn to a scale under which 1 inch 
represented 40 feet.

3. A total of 19 bids were received ranging from $1,690,000 to 
$2,827,500.  The government estimate for the procurement was 
$2,077,454.

4. This understatement was clearly material to the offerors since the 
solicitation specifically provided that all asbestos would have to be 
removed for the price offered, regardless of the actual amount of 
asbestos found in the roof.

5. Hackney also argues that the "order of precedence" clause in the 
solicitation rendered amendment No. 0005 immaterial in that it 
effectively provided a basis for offerors to determine which of the 
drawings should have been relied on in preparing their bids.  We 
disagree.  The solicitation clause stated: 

     "Large scale drawings shall, in general, govern small scale 
     drawings.  Figures marked on drawings shall, in general, be 
     followed in preference to scale measurements."

The architectural drawings and site plan contained dimensional figures 
for some, but not all, of the roof dimensions; for portions of the 
roof where actual dimensions were not listed, bidders were required to 
revert to the scale drawings for their calculations.  Since the 
asbestos drawings were drawn to a larger scale than the site plan 
drawing, and to the same size scale as the architectural drawings, the 
above "order of precedence" clause failed to establish a definitive 
order of precedence between the accurate site plan and architectural 
drawings and the inaccurate asbestos drawings.