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.