BNUMBER:  B-274796.2
DATE:  February 14, 1997
TITLE:  ABC Project Management, Inc.

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Matter of:ABC Project Management, Inc.

File:     B-274796.2

Date:February 14, 1997

Thomas J. Rossi, Esq., Canfield, Venusti, Madden & Rossi, LLP., for 
the protester.
Phillipa Anderson, Esq., Department of Veterans Affairs, for the 
agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected as nonresponsive a bid that failed to 
acknowledge an amendment containing a revised Davis-Bacon Act wage 
rate determination with an increased wage rate for sprinkler fitters; 
amendment was material as agency reasonably anticipates that the 
services of sprinkler fitters will be required in contract 
performance, and there is no evidence that the bidder was otherwise  
obligated to pay sprinkler fitters at a level at least as high as that 
set forth in the wage determination.  

DECISION

ABC Project Management, Inc. protests the rejection of its bid as 
nonresponsive under Department of Veterans Affairs invitation for bids 
(IFB) No. 604-4-96.  ABC's bid was rejected for failure to acknowledge 
amendment No. 0001, which contained a revised Davis-Bacon Act wage 
rate determination.  ABC maintains that its failure to acknowledge the 
amendment should be waived as a minor informality.  

We deny the protest.

The IFB, issued on July 5, 1996, called for replacement of certain 
steam and condensation lines.  Amendment No. 0001, also issued on July 
5, contained a modified wage rate determination under the Davis-Bacon 
Act, 40 U.S.C.  sec.  276a (1994), which increased the wage rates for 
sprinkler fitters. 

The agency received seven bids by the August 6 bid opening date.  ABC 
was the apparent low bidder.  The agency rejected ABC's bid as 
nonresponsive for failure to acknowledge amendment No. 0001.  By 
letter dated September 5, ABC filed an agency-level protest contesting 
the rejection of its bid as nonresponsive.  After the  agency-level 
protest was denied on September 16, ABC protested to our Office.[1]

ABC argues that its failure to acknowledge amendment No. 0001 should 
be waived as a minor informality which did not affect the 
responsiveness of its bid.  ABC states that the revised wage rate 
determination contained in the amendment had no  monetary impact on 
the firm's bid because it intended to employ only pipe fitters (whose 
wages were not affected by the amendment).  ABC asserts that the only 
work covered by this solicitation that could possibly be done by 
sprinkler fitters is the moving of sprinkler heads that interfere with 
the placement of the new steam pipes.  ABC contends that pipe fitters 
are permitted to work with sprinkler pipes and that it is illogical to 
assume that a contractor would employ another trade, such as sprinkler 
fitters, to move sprinkler heads where there is a trade already on the 
job that can perform the work.  Therefore, ABC contends that its 
failure to acknowledge the amendment should be waived and it should 
receive the award based on its low bid. 

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 comply with the amendment.  Head Inc., 68 Comp. Gen. 198 
(1989), 89-1 CPD  para.  82, recon. denied, B-233066.2, May 16, 1989, 89-1 
CPD  para.  461.  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)  sec.  14.405; DeRalco, Inc., 68 Comp. 
Gen. 349 (1989), 
89-1 CPD  para.  327.  

Where a reasonable possibility exists that a certain trade's services 
will be required in the performance of a contract, an amendment that 
revises a wage rate for that trade pursuant to the Davis-Bacon Act is 
material.  Promethean Constr. Co., Inc., B-255222, Feb. 7, 1994, 94-1 
CPD  para.  78.  This is true regardless of how minimal the revisions 
because the wage rates are mandated by the Act, and the bidder has no 
legal obligation to pay the minimum wage rates without acknowledgment 
of the amendment.  Robinson & Co., B-265656, Dec. 1, 1995, 95-2 CPD  para.  
262.  To give the bidder the opportunity to acknowledge an amendment 
revising wage rates after bid opening would allow the firm to decide 
to render itself ineligible for award by choosing not to cure the 
defect.  See Phenix Mechanical Contractors, Inc., B-233061, Dec. 19, 
1988, 88-2 CPD  para.  603; RTC Constr., B-217362, Jan. 24, 1985, 85-1 CPD  para.  
95.[2]  

Here, the contracting officer determined that there is a reasonable 
possibility that sprinkler fitters could be used to perform some of 
the work under this current project.  While ABC claims that it 
intended to employ only pipe fitters instead of sprinkler fitters, 
nothing in ABC's bid shows the labor categories on which its bid was 
based and, in any case, ABC was not bound by the terms of the IFB to 
perform using any particular labor categories.  Thus, ABC could 
perform the work using sprinkler fitters, and if it did so it would 
not be bound to pay the wages set forth in the amended IFB.  
Accordingly, ABC's bid clearly was nonresponsive.  ABC may not take 
steps to obligate itself to pay the required wages at this juncture; 
post-bid-opening submissions or explanations cannot be used to make a 
nonresponsive bid responsive, even where the government could save 
money by permitting correction.  Promethean Constr. Co., Inc., supra. 

The protest is denied.   

Comptroller General
of the United States

1. In a letter dated October 28, the agency initially stated that it 
would treat ABC's failure to acknowledge the amendment as a minor 
informality.  However, the agency subsequently determined that 
amendment No. 0001 was material; hence, it could not waive ABC's 
failure to acknowledge the amendment.  

2. An exception to the general rule arises where the failure to 
acknowledge the amendment has no impact on the relative standing of 
bidders and the bidder is subject to a particular legal obligation to 
pay wages at least as high as those in the wage determination, such as 
where a collective bargaining agreement mandates such wage levels.  
ABC Paving Co., 66 Comp. Gen. 47 (1986), 86-2 CPD  para.  436; Brutoco Eng'g 
& Constr., Inc., 62 Comp. Gen. 111 (1983), 83-1 CPD  para.  9.  However, ABC 
has not alleged that it was under any such specific legal obligation, 
and nothing in the record suggests such an obligation.