BNUMBER:  B-276271 
DATE:  June 2, 1997
TITLE: Einhaupl GmbH, B-276271, June 2, 1997
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Matter of:Einhaupl GmbH

File:     B-276271

Date:June 2, 1997

Reed L. von Maur, Esq., and J. Casey Fos, Esq., von Maur & Partners, 
for the protester.
Nancy van Noortwijk-Sommer, Esq., Department of the Army, 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 properly rejected bid as nonresponsive that failed to include 
acknowledgment of a solicitation amendment that added asbestos 
abatement work not contemplated by the original invitation for bids 
and properly canceled the solicitation when it learned that it had 
failed to furnish the amendment to the bidder.

DECISION

Einhaupl GmbH protests the rejection of its low bid as nonresponsive 
and the cancellation of invitation for bids (IFB) No. 
DACA90-96-B-0045, issued by the United States Army Corps of Engineers, 
Transatlantic Programs Center, Europe, for construction and repair 
work.  

We deny the protest.

The IFB was issued on August 23, 1996, for the repair of the 
ventilation system, utility lines, and exterior of a dining facility 
in Hohenfels, Germany, under a fixed-price, lump-sum contract.  Among 
other things, the successful contractor was required to demolish the 
grid, metal, and acoustic ceilings, and to replace the existing roof 
and gables, both of which contained asbestos.[1]   Amendment No. 0001 
was issued to make various "change and additions" to the asbestos 
abatement work.  Among these were the addition of Item 2.2.34, which 
required the removal and disposal of 783 square meters of cement 
asbestos ceiling tiles attached to the bottom of the building's wood 
trusses.  Amendment No. 0002 was issued to make changes to the IFB's 
estimated quantity work sheets (EQW)[2] and to postpone the bid 
opening to September 25.

Five bids were submitted in response to the IFB.  Einhaupl submitted 
the low bid of DM (Deutsche Marks) 1,974,870.66, but failed to 
acknowledge amendment No. 0001.  All bids, including Einhaupl's, 
acknowledged amendment No. 0002, but only the second and third low 
bids acknowledged both amendments.  The Army rejected Einhaupl's bid 
as nonresponsive because it determined the changes made by amendment 
No. 0001, particularly the addition of Item 2.2.34, were material.  
The Army further determined that Einhaupl had not acknowledged 
amendment No. 0001 because the agency inadvertently neglected to send 
Einhaupl the amendment.  Because it found that the competition had 
been negatively affected by its actions, the Army canceled the IFB 
pursuant to Federal Acquisition Regulation (FAR)  sec.  14.404-1(c), which 
authorizes the cancellation of an IFB after bid opening where there is 
a compelling reason to do so.  This protest followed.

Einhaupl protests that amendment No. 0001 was not material, that its 
failure to acknowledge this amendment should have been waived as a 
minor informality, and that thus the agency did not have a compelling 
reason to cancel the IFB.  

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.  
Specialty Contractors, Inc., B-258451, Jan. 24, 1995, 95-1 CPD  para.  38 at 
2.  On the other hand, a bidder's failure to acknowledge an amendment 
that is not material is waivable as a minor informality.  FAR  sec.  
14.405.  An amendment is material where it imposes legal obligations 
on a prospective bidder that were not contained in the original 
solicitation or if it would have more than a negligible impact on 
price, quantity, or delivery.  FAR  sec.  14.405(d)(2); Specialty 
Contractors, Inc., supra at 2.

The Army reports that amendment No. 0001 was issued following the 
release of the initial IFB because the Army had discovered cement 
asbestos ceiling tiles concealed between the roof and the ceilings in 
the building which needed to be removed.  The Army states that this 
amendment, requiring the removal of these tiles, added a substantial 
amount of new asbestos abatement work, that the additional work may 
impact the performance schedule, and that the number of personnel 
needed for asbestos abatement may increase.  The Army further advises 
that neither the specifications nor drawings for the project 
contemplated the removal of the asbestos cement tiles. 

Einhaupl argues that the IFB as issued obligated the prospective 
bidder to remove the asbestos cement tiles in view of the requirements 
to demolish the various ceilings and to replace the building's 
asbestos-containing roof and gables so that the amendment was not 
material.  

We disagree.  As indicated, the original IFB specifically required 
various non-asbestos ceilings and the "asbestos-containing roof and 
gable covering" to be removed.  The tiles whose removal was mandated 
by this amendment were not specifically encompassed by this language 
and were not identified in the specifications or drawings included in 
the IFB; indeed, the necessity to remove the asbestos-containing tiles 
was not known or contemplated until after the IFB was issued.  Thus, 
it is simply unreasonable to read the IFB as requiring the removal of 
the asbestos-containing tiles attached to the bottom of the trusses 
between the roof and the ceilings.  The removal of this additional 
asbestos-containing material, which is hazardous and requires special 
handling, is clearly a material item of work.  See MIBO Constr. Co., 
B-224744, Dec. 17, 1986, 86-2 CPD  para.  678 at 3.  Accordingly, Amendment 
No. 0001, imposing this additional requirement, was material.[3]  
Although the Army reports that the additional work increased the 
government estimate by 4.2 percent, and Einhaupl alleges the price 
impact to be only trivial, the materiality of an amendment which 
imposes new legal obligations on the contractor is not diminished by 
the fact that the amendment's impact upon price may be trivial.  See 
Specialty Contractors, Inc., supra at 2.[4] 

Since Einhaupl's bid, without acknowledgment of amendment No. 0001, 
does not represent a commitment to perform this additional material 
work, the agency properly rejected Einhaupl's bid as nonresponsive.  
Id.  Under the circumstances, we do not object to the cancellation of 
the IFB.

The protest is denied.

Comptroller General
of the United States  

1. The specifications described in detail the aspects and requirements 
of the work involving the removal of asbestos laden materials.  The 
specifications described the ceilings as not containing asbestos, and 
the roofing sheets and vinyl floor tile as containing asbestos.

2. The EQW reflected the contractor's estimated price in terms of 
labor and materials keyed to the work required under the 
specifications; the submission of the EQW with the bid was optional 
and was to be used for informational purposes only.

3. We note that even Einhaupl admits that Item 2.2.34 required the 
ceilings to be removed under "asbestos related conditions," which may 
require additional work.  

4. Because we conclude that the amendment was material based upon the 
requirement to remove the cement asbestos ceiling tiles, it is not 
necessary to consider the materiality of the remaining aspects of the 
amendment.