BNUMBER:  B-275044
DATE:  January 17, 1997
TITLE:  Schuster Engineering, Inc.

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Matter of:Schuster Engineering, Inc.

File:     B-275044

Date:January 17, 1997

Alan M. Grayson, Esq., and Victor A. Kubli, Esq., Alan M. Grayson and 
Associates, for the protester. 
Col. Nicholas P. Retson, and Lt. Col. David S. Franke, Department of 
the Army, for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency improperly rejected protester's low bid for failure to 
acknowledge an amendment that only relaxed performance requirements.

DECISION

Schuster Engineering, Inc. protests the rejection of its low bid under 
invitation for bids (IFB) No. DABT23-96-B-0061, issued by the 
Department of the Army for replacement windows in military housing 
units at Fort Knox, Kentucky.  The protester asserts that the 
contracting officer improperly rejected Schuster's low bid for failing 
to acknowledge an immaterial solicitation amendment.

We sustain the protest.

The IFB was issued on August 23, 1996.  Section 8A of the 
specification read in pertinent part:

        "Window units shall meet . . . performance requirements as 
        specified  in NWWDA I.S.2 [National Wood Window and Door 
        Association Standard I.S.2].  Windows shall be Grade 60."

In response to a September 13 letter from a potential supplier 
concerning section 8A of the specification, the Army decided that the 
referenced standard and the associated "Grade 60" were obsolete.  As a 
result, on September 17, the agency issued amendment No. 0002, which 
is the subject of this protest, amending section 8A as follows:

        ". . . [a]ll NWWDA references shall be changed to current 
        NWWDA IS2-93 standard with a minimum Grade DP [design 
        pressure] 35."

Five bids were received as of the amended September 27 opening date.  
Following the rejection of the lowest bid for failure to agree to the 
IFB's required bid acceptance period, the next two lowest bids were:

        Schuster         $2,473,889
        Koch Corporation $2,647,496

Schuster's bid did not acknowledge receipt of amendment No. 0002 and, 
as a result, the bid was rejected and award was made to Koch on 
September 30.  Schuster filed this protest on October 10, within 10 
days after award, and contract performance has been stayed pending the 
issuance of this decision.

Schuster essentially maintains that the amendment which it failed to 
acknowledge is not material because it constitutes only a relaxation 
of the original solicitation requirements.  Accordingly, Schuster 
submits that its failure to acknowledge the amendment should have been 
waived.  For the reasons set forth below, we agree.

Federal Acquisition Regulation (FAR)  sec.  14.405 provides that a 
contracting officer shall give a bidder an opportunity to cure a 
deficiency resulting from a minor informality or irregularity in its 
bid including the failure to acknowledge an amendment which has no, or 
merely a negligible, effect on such factors as the price or the 
quality of the item being acquired; in the alternative, the 
contracting officer may waive such a minor informality or 
irregularity.  There is no precise rule for determining whether a 
change in requirements is more than negligible, Innovative 
Refrigeration Concepts, B-271072, June 12, 1996, 96-1 CPD  para.  277; 
rather, that determination is based on the facts of each case.  Day 
and Night Janitorial and Maid and Other Servs., Inc., B-240881, Jan. 
2, 1991, 91-1 CPD  para.  1.  The mere fact that requirements have been 
changed by an amendment does not render the amendment material and 
does not, therefore, provide a basis for rejecting a bid that does not 
acknowledge the amendment.  See L & R Rail Serv., B-256341, June 10, 
1994, 94-1 CPD  para.  356 (protest sustained where agency did not provide 
support for its assertion that a change in requirements was material); 
Titan Mountain States Constr. Corp.,     B-183680, June 27, 1975, 75-1 
CPD  para.  393.  In other words, in cases where the record does not 
establish that price is meaningfully affected by an amendment, for the 
amendment to be material something about the change must reflect a 
legitimate minimum need of the agency such that its requirements will 
not be met if the contractor performs to the unamended specifications.  
See Doty Bros. Equip. Co.,  B-274634, Dec. 19, 1996, 96-2 CPD  para.  234 
(rejection of an offer for failure to acknowledge an amendment which 
relaxed a solicitation requirement is improper); accord, Pro Alarm 
Co., Inc., 69 Comp. Gen. 727 (1990), 90-2 CPD  para.  242.

Because it did not acknowledge amendment No. 0002, Schuster committed 
itself to perform in accordance with NWWDA standard I.S.2, i.e., to 
provide Grade 60 windows under that standard.  Had Schuster 
acknowledged the amendment, like Koch, it would have been obligated to 
provide, at a minimum, Grade DP 35 windows under NWWDA standard 
IS2-93.  The agency has not argued, and the record contains no 
evidence, that there is any price differential associated with the 
switch to the new standard.  The sole determinative question[1] 
presented for our review is whether or not Grade 60 windows under the 
previous standard meet or exceed the agency's requirements for Grade 
DP 35 windows.

First, the record shows that the design pressure required under the 
previous standard for Grade 60 windows was 40 pounds per square foot; 
as amended, however, the solicitation requires a minimum design 
pressure of 35 pounds per square foot.  Thus, in terms of the most 
important measure of performance at issue, pressure resistance, it is 
clear that the unamended version of the solicitation is more stringent 
in terms of what is required to be provided by a contractor since it 
calls for a more durable product--that is, one which will resist a 
greater pressure.  Next, the agency's reliance on a manufacturer's 
product performance data sheet, which shows that other factors, such 
as structural test pressure, water and air penetration allowance and 
the operating force that a particular window can withstand are the 
subjects of the new DP standard, is misplaced; the data sheet shows 
that for each factor identified by the Army as important to its needs, 
the Grade 60 window actually is required to meet higher standards than 
the Grade DP 35 window required by the amended solicitation.

It is clear, therefore, that Schuster was obligated to provide a 
window which was materially equal to or more durable than that 
required by the amended solicitation.  Because the amendment 
effectively relaxed the agency's requirements in every category of 
standards identified as important by the agency, it cannot be viewed 
as material.  Doty Bros. Equip. Co., supra.  Since the contracting 
officer did not permit Schuster to cure its failure to acknowledge the 
amendment or simply waive the failure as required by FAR  sec.  14.405, we 
sustain the protest.

We recommend that the contract to Koch be terminated and that award be 
made to Schuster if otherwise appropriate.  We further recommend that 
Schuster be reimbursed for its reasonable costs of filing and pursuing 
the protest including attorney's fees.  Bid Protest Regulations, 
section 21.8(a)(2), (a)(5), and (d)(1), 61 Fed. Reg. 39039, 39046 
(1996) (to be codified at 4 C.F.R.  sec.  21.8(a)(2), (a)(5), and (d)(1)).  
The protester should submit its certified claim for costs to the 
contracting agency within 60 days of receiving this decision.  Section 
21.8(f)(1), 61 Fed. Reg. supra (to be codified at 4 C.F.R.  sec.  
21.8(f)(1)).

The protest is sustained.

Comptroller General
of the United States

1. The agency has suggested that the amendment is material simply 
because it references a new, updated standard and reports that it has 
experienced unspecified and undefined problems in the recent past in 
using the obsolete standard with its reference to Grade 60 windows.  
Other than positing that the use of the obsolete standard creates some 
degree of uncertainty as to what type of windows must be provided by a 
contractor, the agency has not addressed the question of whether the 
amended solicitation imposes a more stringent standard on the 
contractor than that imposed by the unamended solicitation.  The 
agency also argues that the materiality of the amendment is supported 
by the fact that Schuster's bid relied on a quotation from a supplier 
that took exception to the DP 35 requirement and proposed to furnish 
DP 30 grade windows; however, Schuster's bid submitted to the Army 
took no exception to the requirement and, in a sworn statement, 
Schuster reports that it received quotations from numerous suppliers 
and, in fact, intends to use a supplier other than the one identified 
by the agency.