BNUMBER:  B-277554 
DATE:  September 22, 1997
TITLE: ACC Construction Co., Inc., B-277554, September 22, 1997
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Matter of:ACC Construction Co., Inc.

File:     B-277554

Date:September 22, 1997

Karl Dix, Jr., Esq., Smith, Currie & Hancock, for the protester.
D. Lee Roberts, Jr., Esq., Long, Weinberg, Ansley & Wheeler, for 
Dawson Building Contractors, Inc., an intervenor.
William A. Hough, Esq., Department of the Army, for the agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected low bid as nonresponsive where bidder failed 
to acknowledge with its bid a material amendment to an invitation for 
bids that substantially increased the bidder's performance obligations 
for construction of a parking area and resolved an ambiguity as to the 
dimensions required for construction of a vehicle washrack.

DECISION

ACC Construction Co., Inc. protests the rejection of its low bid under 
a Department of the Army invitation for bids (IFB) No. 
DACA21-97-B-0012, issued for construction work at the United States 
Army Reserve Center, Ft. Bragg, North Carolina.  ACC's bid was 
rejected as nonresponsive because it did not contain an acknowledgment 
of amendment No. 0005, which the agency considered material.  ACC 
contends that the amendment was not material and that the failure to 
acknowledge it should be waived as a minor informality.  

We deny the protest.

The IFB was issued on March 13, 1997.  Bids were opened on May 13.  
ACC's low bid of $10,158,401 was rejected after it was found not to 
contain an acknowledgment of amendment No. 0005.  The agency 
considered the amendment to be material in view of its effect on the 
legal obligations of the contracting parties and the estimated 
$155,614 in additional costs associated with the revisions contained 
in the amendment.

Amendment No. 0005 basically addressed four areas of work.  First, 
under the IFB, bidders were to offer the agency the option of a gravel 
or a paved military equipment parking area.  Drawing C10 of the IFB 
showed a requirement of 9 inches of aggregate base with a 3-inch layer 
of bituminous surface for the paved parking area.  However, the 
drawing contained no specifications showing the base and surface of 
the gravel parking area, should the agency decide to procure the 
gravel parking area.  Drawing C10 was revised by amendment No. 0005 to 
include a diagram specifying 8 inches of gravel.  Second, under 
original drawing C3 the measurements for the vehicle washrack in the 
parking area were shown to be 25 feet by 38 feet, but in original 
drawing C17, the same area was specified as 45 feet by 70 feet.  The 
amendment corrected this discrepancy by conforming the measurements in 
drawing C3 to 45 feet by 70 feet.  Third, the original IFB contained a 
kitchen equipment schedule listing 38 items.  For most of items 1 
through 25, the agency provided the pertinent information needed to 
bid the items (there were no items numbered 26 or 27).  However, for 
items 28 through 40, the IFB stated that the government was awaiting 
more detailed information.  Amendment No. 0005 supplied this 
information on items 28 through 40 (and deleted two items).  The 
amendment also added information designating acceptable brands/models 
for some of items 1 through 25 and added five new required items (42 
through 46).  Fourth, a rock dam and silt fencing were added to the 
environmental protection requirements established under the original 
IFB.[1] 
 
ACC contends that amendment No. 0005 only clarified requirements that 
were already contained in the IFB and did not affect the legal 
obligations of the contracting parties.  Also, ACC argues that the 
agency overstated the amendment's cost impact. 

Federal Acquisition Regulation  sec.  14.405 permits the contracting 
officer to waive, or allow a bidder to cure, a minor informality or 
irregularity in a bid, including the failure to acknowledge an 
amendment which has no, or merely a negligible, effect on the price, 
quality, or quantity of the goods or services being procured.  There 
is no precise rule for determining what is negligible, Innovative 
Refrigeration Concepts, B-271072, June 12, 1996, 96-1 CPD  para.  277 at 2; 
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 at 4.  Where an amendment has more than a 
negligible impact on the price, quantity, quality, or delivery of the 
items or services bid upon or on the bidder's legal obligation to 
perform in accordance with the IFB, it is material and the failure to 
acknowledge the amendment must result in the rejection of the bid as 
nonresponsive since, absent 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.  DeRalco, Inc., 
B-232989, Dec. 8, 1988, 88-2 CPD  para.  574 at 2.

Here, we agree with the agency that amendment No. 0005 to the IFB was 
material, since it affected contract performance in at least two 
areas.  As a result, ACC's failure to acknowledge these portions of 
the amendment could not be waived.  See  Kentucky Bldg. Maintenance, 
Inc., B-215397, Dec. 19, 1984, 84-2 CPD  para.  683 at 4.  More 
specifically, we conclude that the amendment imposed new obligations 
on the contractor in constructing the gravel parking area and 
clarified a significant ambiguity concerning the size of the vehicle 
washrack to be built.

As stated above, the unamended IFB provided for a gravel parking area.  
Section 02.24.1 at paragraph 3.4.4 of the solicitation specifications, 
entitled "layer thickness," provided that "[c]ompacted thickness of 
the aggregate shall be as indicated.  No layer shall be in excess of 8 
inches, nor less than 3 inches in compacted thickness."  However, the 
applicable drawing C10 only addressed the aggregate thickness of the 
paved parking area.  The drawing failed to show the aggregate 
thickness for the gravel parking area.  Amendment No. 0005 revised 
drawing C10 to provide a diagram showing that the compacted thickness 
for the gravel parking area was required to be 8 inches.  Absent this 
amendment, bidders could furnish an aggregate thickness of only 3 
inches.  The amendment thus required the contractor to provide an 
additional 5 inches of aggregate that it was not contractually bound 
to provide under the original IFB.  Further, the record shows that the 
requirement for an 8-inch depth was material, since it affects the 
quality of the work and the performance of the parking area, which is 
to be used for parking military equipment and vehicles.[2]  Since 
amendment No. 0005 imposes a new legal obligation on the bidder, the 
amendment is material, and whether the agency's cost estimate for the 
additional 5-inch aggregate is overstated (as the protester asserts) 
is not controlling.  See DeRalco, Inc., supra, at 3.[3]

Finally, the protester's argument that the requirement for the gravel 
parking area should be waived because the agency intends to procure a 
paved parking area is without merit.  The IFB called for bidders to 
submit prices for both a gravel and a paved parking area; the agency, 
based on funds available, intended to choose between these two 
options.  The agency confirms that the gravel parking area was and 
continues to be a legitimate option along with the paved parking area 
option.  In any event, the responsiveness of the bid must be judged at 
the time of bid opening.  The agency's ultimate decision after bid 
opening as to which option to exercise does not affect the bid's 
responsiveness at the time of bid opening.

We also think the agency correctly found the amendment of drawing C3 
addressing the size of the vehicle washrack to be material.  This 
revision resolved the conflict between the unamended drawing C3, which 
showed a smaller size washrack (25 feet by 38 feet), and drawing C17, 
which showed the correct and substantially larger dimensions of the 
washrack (45 feet by 70 feet).  Absent the amendment, the IFB was 
ambiguous concerning the dimensions of the washrack.

A procuring agency is not required to enter into a contact which 
presents the potential for litigation stemming from an ambiguity in a 
solicitation.  Air Quality Experts, Inc., B-256444, June 15, 1994, 
94-1 CPD  para.  374 at 2.  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 that 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  para.  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 
washrack drawings conflicted as to the size of the washrack.  Thus, 
the amendment did more than clarify the agency's requirement--it 
removed an ambiguity which significantly affected the dimensions of 
the washrack, since under one of the original drawings the washrack 
was much smaller than what the agency intended.  Accordingly, the 
amendment was material and the agency properly rejected ACC's bid for 
failure to acknowledge a material amendment.[4]

The protest is denied.

Comptroller General
of the United States

1. The agency estimated the increased costs of the four changes as 
follows:  $83,400 for the gravel work; $12,906 for the washrack; 
$39,222 for the kitchen schedule ($35,427 for items 28 through 46 and 
$3,795 for items 1 through 25); and $6,980 for the dam and fencing. 

2. The protester argues that, given the use of the area as a military 
equipment parking lot, the agency is unreasonable in asserting that a 
bidder would have thought a 3-inch aggregate was acceptable.  This 
argument misses the point, which is that the unamended IFB only 
obligated contractors to provide a 3-inch thickness for the gravel 
area.  In fact, the protester's argument that a 3-inch depth would not 
have satisfied the agency's needs effectively concedes the materiality 
of the amendment.

3. ACC argues that on both the original and amended drawing C3 (site 
layout) the parking area was designated by the marking shown in the 
legend as "Heavy Duty Pavement."  Another different marking was shown 
on the legend for "Gravel Base Bid" and "Heavy Duty Paving M.E.P. 
Option" (both of which referenced drawing C10 for further details), 
but this marking was not shown anywhere on the site layout (drawing 
C3).  This "discrepancy" constitutes an ambiguity, ACC argues, which 
requires that the IFB be canceled and that the procurement be 
resolicited after correction of the discrepancy.  We disagree and note 
that ACC, from its protest submissions, clearly understood that the 
IFB required pricing for a gravel and a paved military equipment 
parking area that was located on the site layout and marked as "Heavy 
Duty Pavement."  In any event, this "discrepancy" was clearly apparent 
prior to bid opening, and ACC's raising of the issue after bid opening 
is untimely.  Bid Protest Regulations, 4 C.F.R.  sec.  21.2(a)(1) (1997).

4. In view of the discussion above, we need not address the 
materiality of the remainder of the amendment.