BNUMBER:  B-271072
DATE:  June 12, 1996
TITLE:  Innovative Refrigeration Concepts

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Matter of:Innovative Refrigeration Concepts

File:     B-271072

Date:June 12, 1996 

Sam Zalman Gdanski, Esq., for the protester.
David H. Brujes, Esq., Department of the Treasury, for the agency.
Charles W. Morrow, 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 for 600-ton chillers as 
nonresponsive for failing to acknowledge an amendment that corrected 
an obvious error in the entry water temperature parameter under which 
the chillers would be operated; the amendment was not material because 
it did not affect the protester's obligation to supply 600-ton 
chillers in accordance with the solicitation's requirements.  

DECISION

Innovative Refrigeration Concepts (IRC) protests the rejection of its 
bid as nonresponsive under invitation for bids (IFB) No. FTC-96-11, 
issued by the Department of the Treasury, Federal Law Enforcement 
Training Center (FLETC), Glynco, Georgia, for two 600-ton chillers.  
The agency rejected the bid because IRC failed to acknowledge 
amendment Nos. 0002 and 0003.  IRC contends that the amendments were 
not material.

We sustain the protest.

The IFB schedule required a bid for two 600-ton chillers and one 
1,300-ton cooling tower.[1]  Amendment No. 0001 was issued to 
incorporate certain drawings and technical specifications omitted from 
the original IFB package.  Among other things, the information sheet 
in the amendment included operating parameters for the evaporators on 
the 600-ton chillers.  The stated operating parameters were entry 
water temperature of 57 degrees Fahrenheit (F), leaving water 
temperature of 42 degrees F, and flow rate of 1,150 gallons per minute 
(GPM).  Amendment No. 0002 was subsequently issued, and contained the 
following question and answer:

     "QUESTION:  Chiller capacity - The flow rate and water 
     temperature difference for the evaporator do not equate to the 
     scheduled tonnage (600T).  

     "ANSWER:  The entering water temperature as shown on the chart in 
     Amendment 0001 was incorrect.  The correct chiller entering water 
     temperature should be 54.5 [degrees] F instead of 57 [degrees] 
     F."  
  
Six bids were received by bid opening on December 20.  IRC submitted 
the low bid at $185,976 for the two 600-ton chillers.  While IRC's bid 
acknowledged amendment No. 1, it failed to acknowledge amendment Nos. 
0002 and 0003.[2]  FLETC rejected IRC's bid as nonresponsive on the 
basis that amendment No. 0002 was material in light of the change in 
the entry water temperature parameter.[3]  FLETC made award to the 
next low bidder, Carrier Corporation, at $186,646 on February 9, 1996.  
IRC protested on that same date.  The agency determined that the need 
for the chillers was urgent and authorized contract performance, 
notwithstanding the protest.  We have been advised that the chillers 
have been delivered. 

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.  
Central Atlantic Contractors, Inc., B-243663, Aug. 14, 1991, 91-2 CPD  para.  
146.  On the other hand, a bidders failure to acknowledge an amendment 
that is not material is waivable as a minor informality.  Federal 
Acquisition Regulation (FAR)  sec.  14.405.  An amendment is material only 
if it would have more than a trivial impact on price, quantity, 
quality, or delivery of the item bid upon, or the relative standing of 
the bidders.  Id.; FAR  sec.  14.405(d)(2).   An amendment is not material, 
however, where it does not impose any legal obligations on the bidder 
different from those imposed by the original solicitation or previous 
and acknowledged amendments.  Angus Fire Armour Corp., B-237211.2, 
Jan. 18, 1990, 90-1 CPD  para.  68.  No precise rule exist to determine 
whether a change is more than negligible, but an amendment that merely 
clarifies an existing requirement is not material and the failure to 
acknowledge it may be waived.  Id.

Here, the agency asserts that amendment No. 0002 was material because 
it corrected a mistake in one of the operating parameters, entry water 
temperature, that rendered the specifications in the IFB, as amended 
by amendment No. 0001, impossible to meet.  The agency explains that 
it would take a 718-ton chiller to cool water in accordance with the 
parameters stated in amendment No. 0001,[4] and has provided the 
formula and mathematical calculations, in which each of the parameters 
as well as the chiller capacity are factors, to support its position 
in this regard.  

The protester argues that the IFB unambiguously required 600-ton 
chillers, as stated on the IFB schedule completed by IRC, and that 
while it was apparent that one of the parameters in amendment No. 1 
was in error, it was otherwise clear that the IFB required 600-ton 
chillers and that the operating parameters specified were not 
material.  IRC explains in this regard that the specified chiller 
capacity is "a single, vital engineering parameter, which summarizes 
the size, flow, operation temperatures, etc. of the [chiller]."  The 
protester also notes that the fact that the agency was also soliciting 
bids for a 1,300-ton cooling tower demonstrated that 600-ton chillers 
were required, inasmuch as a 1,300-ton tower could not accommodate two 
700-ton chillers.

Based on our review of the record,[5] we find that the amendment 
correcting the entry water temperature parameter was not material and 
that there was no reasonable doubt that IRC's bid commited that firm 
to supply 600-ton chillers that would comply with the IFB 
requirements.  First, we note that the operating parameters for the 
600-ton chillers are within the control of the agency; the agency 
determines the temperature level at which the water enters the 
chillers and the flow rate, and thereby decides the desired leaving 
water temperature from the chiller.  As noted, there is an algebraic 
formula, which was used by the FLETC engineer and is commonly known in 
the industry, in which each of the parameters and the chiller tonnage 
are variables, to determine the operating parameters and/or chiller 
size (tonnage).  As in any algebraic formula, it can be used to 
determine the value of an unknown or erroneous variable where the 
other variables are predetermined or known.  In this case, any bidder 
offering to supply 600-ton chillers could and should have readily 
discerned that one of the operating parameters was in error since 
these parameters cannot be satisfied by a 600-ton chiller.  The record 
shows (and the agency concedes) that 600-ton chillers that otherwise 
satisfy the IFB requirements are designed to accommodate variations of 
the operating parameters specified; for example, the flow rate could 
be lowered to allow the chiller to process 57 degree F water to 42 
degree F water or, as here, the entry temperature of the water could 
be lowered.  Moreover, the agency does not dispute that the 
requirement for a 1,300-ton cooling tower indicates that 600-ton 
chillers, rather than 718-ton units,  were required.  Finally, the bid 
schedule completed by IRC clearly stated that 600-ton chillers were 
required; under the Order of Precedence--Sealed Bidding clause set 
forth at Federal Acquisition Regulation  sec.  52.214-29 and incorporated 
in the IFB, any inconsistency in the IFB would be resolved by giving 
precedence to the schedule (excluding the specifications) over the 
specifications.  

As noted by the agency, we have observed that an agency should not be 
required to enter into a contract that presents the potential of 
litigation stemming from ambiguity in the original documents, that an 
agency with actual knowledge of such ambiguities should try to resolve 
them in an amendment, and that such amendments are generally material.  
See Air Quality Experts, Inc., B-256444, June 15, 1994, 94-1 CPD  para.  
374; Moon Constr. Co., B-228378, Dec. 17, 1987, 87-2 CPD  para.  605.  
However, for the reasons set out above, we think there is no 
reasonable possibility that a bidder would not be bound to supply 
600-ton chillers or could decline to perform the contract because the 
specified operating parameters that contained an obvious error could 
not be met with a 600-ton chiller.  Thus, amendment No. 0002 was not 
material; it merely corrected one clearly erroneous operating 
parameter (not within the control of the contractor) of the clearly 
required 600-ton chillers.  Therefore, the failure to IRC to 
acknowledge the amendment was not a proper basis for rejecting IRC's 
bid as nonresponsive.  See Franklin Envtl. Servs., Inc., B-240589, 
Dec. 4, 1990, 90-2 CPD  para.  454. 

Since the chillers have been delivered, we cannot recommend corrective 
action.  We recommend that IRC be reimbursed its costs of bid 
preparation, and of filing and pursuing the protest, including 
reasonable attorneys' fees.  4 C.F.R.  sec.  21.8 (d)(1996).  The protester 
must file its certified claim for cost with the contracting agency 90 
days after receipt of our decision.  4 C.F.R.  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States 

1. The agency did not award the item for the 1,300-ton cooling tower.  

2. IRC failed to timely acknowledge amendment Nos. 0002 and 0003 
because its agent delivered them to the wrong address.

3. There is no contention, nor do we have any basis to find, that 
amendment No. 0003, or any other parts of amendment No. 0002, are 
material.

4. The agency reports that chillers larger than 600 tons would not fit 
in the limited physical space available.

5. This information includes that gathered during a telephonic 
hearing.