BNUMBER:  B-278076.2 
DATE:  January 20, 1998
TITLE: Kalex Construction & Development, Inc., B-278076.2, January
20, 1998
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Matter of:Kalex Construction & Development, Inc.

File:     B-278076.2

Date:January 20, 1998

Edward J. Kinberg, Esq., for the protester.
Thomas W. Burt, Esq., and Larry E. Beall, Esq., Department of the 
Army, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Amendment is not material where it does no more than restate 
information already contained in the solicitation regarding the scope 
and quality of certain work.

2.  Contracting officer properly accepted bid that failed to 
acknowledge a solicitation amendment that was not material.  

DECISION

Kalex Construction & Development, Inc. protests the proposed award of 
a contract to ABC Landclearing/Tri-State Design (ABC), under 
invitation for bids (IFB) 
No. DACA01-97-B-0082, issued by the United States Army Corp of 
Engineers for basewide landscaping and signage at Homestead Air 
Reserve Base, Florida.  Kalex contends that ABC's bid should have been 
rejected as nonresponsive because it failed to acknowledge an 
amendment to the IFB.

We deny the protest.

The IFB, issued on August 5, 1997, stated that the work consisted of 
landscaping buffers, streetscaping, pedestrian spine with landscaping, 
security lighting and signs for buildings and roadway intersections.  
The IFB required offerors to perform all work and furnish all plant, 
labor, equipment, and materials required by the specifications and the 
drawings.  With respect to the sodding requirement, the IFB provided 
that the work would consist of solid sodding with St. Augustine 
"Floritam" or Bahia "Pensacola," as indicated on the contract 
drawings.  The limits of sodding were also stated to be as required on 
the contract drawings.  With respect to the lighting system, the IFB 
required that the lighting system be configured as specified by the 
drawings and that the system included all fixtures, hardware, poles, 
cables, connectors, adapters, and appurtenances needed to provide a 
fully functional lighting system.  Amendment 0001, issued on August 
25, revised the bid schedule and the explanation of bid items.  
Amendment 0002, issued on August 29, was entitled "Bid Clarification" 
and provided the following:

     Several contractors have inquired about the extent of sodding 
     required.  This clarification is being issued to ensure that all 
     contractors understand the governments intent.  This solicitation 
     requires sodding in all areas designated to receive sodding as 
     shown  on the plan sheets (L-1 thru L-32) AND ADJACENT TO THE 
     PEDESTRIAN SPINE as shown on detail sheet L-33; Typical Sod 
     Installation for the Pedestrian Spine.  The cost for this work 
     shall be included in Bid Item No. 1.  Likewise, all contractors 
     shall bid on the electrical work as shown in the plans and 
     specifications.  Reuse of any existing fixtures shall not be 
     permitted.

Ten bids were received by the September 5 bid opening date.  ABC 
submitted the lowest bid of $1,462,300 but failed to acknowledge 
amendment No. 0002.  Kalex submitted the second low bid of $1,521,405.  
On September 26, Kalex filed an agency-level protest challenging the 
potential award to ABC on the grounds that ABC's bid should have been 
rejected as nonresponsive because it failed to acknowledge the 
amendment.  On September 30, the agency denied the protest on the 
basis that the amendment was not material and that ABC's failure to 
acknowledge was properly waived as a minor informality.  On October 9, 
Kalex filed this protest with our Office.

Kalex contends that amendment No. 0002 was material because it 
clarified two patent ambiguities in the solicitation.  Specifically, 
Kalex maintains that the scope of work for Bahia grass sod at the 
pedestrian spine was not indicated in the unamended solicitation and 
that the amendment defined the ability of the contractor to reuse 
existing light poles.

Generally, 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.  Pittman Mechanical Contractors, Inc., 
B-225486, Feb. 25, 1987, 87-1 CPD  para.  218 at 3.  An amendment is 
material, however, only if it would have more than a trivial impact on 
the price, quantity, quality, delivery, or the relative standing of 
the bidders.  Id.; Federal Acquisition Regulation (FAR)  sec.  
14.405(d)(2).  An amendment is not material where it does not impose 
any legal obligations on the bidder different from those imposed by 
the original solicitation; that is, for example, where it merely 
clarifies an existing requirement or is a matter of form.  In that 
case, the failure to acknowledge the amendment may be waived and the 
bid may be accepted.  Star Brite Constr., Co., Inc., B-228522, Jan. 
11, 1988, 88-1 CPD  para.  17 at 3.

Here, because of the solicitation provisions already in the IFB, 
amendment No. 0002 did not impose any additional obligations on the 
bidder.  The bidder was already obligated to provide sodding in 
accordance with the drawings provided and to install a lighting system 
that included hardware, poles, cables, connectors, adapters, and 
appurtenances.  Moreover, the IFB invited contractors to inspect the 
site and acquaint themselves with the site conditions and any problems 
incident to the execution of the work.

With respect to the sodding requirement, the amendment merely stated 
that the solicitation required sodding in all areas designated to 
receive sodding as shown on plan sheets L-1 to L-32 and adjacent to 
the pedestrian spine as shown on detail sheet L-33.  This amendment 
only reiterated what was already required by the IFB and did not 
impose any additional obligations on bidders.  The protester argues 
that, without the amendment, a bidder would not know if and what type 
of sodding was to be used for the pedestrian spine; in particular, 
Kalex argues that, prior to the amendment, the drawings were ambiguous 
concerning whether the pedestrian spine was to be sodded with Bahia 
grass or St Augustine grass.  However, if this were a legitimate 
concern, the amendment would not have resolved it, since the amendment 
merely stated that sodding was to be done in accordance with the 
plans.  In fact, reading all the drawings and plan sheets, with which 
bidders were required to comply, clearly shows that the pedestrian 
spine was to be sodded with Bahia grass.  A solicitation must be read 
as a whole and in a manner that gives effect to all of its provisions.  
Hines/Mortenson, B-256543.4, Aug. 10, 1994, 94-2 CPD  para.  67 at 4.  
Reading the plans in conjunction with the IFB instructions, the 
sodding requirement for the pedestrian spine was already clear before 
amendment No. 0002 was issued.

Likewise, with respect to the light fixtures, the amendment stated 
that all contractors shall bid on the electrical work as shown in the 
plans and specifications, adding simply that reuse of any existing 
fixtures was not permitted.  However, the IFB already provided that 
the lighting system to be replaced consisted of all fixtures, 
hardware, poles, cables, connectors, adapters, and appurtenances.  The 
IFB also contained detailed drawings for the installation of the poles 
and the assembly of the light fixture.   Further, the IFB contained 
FAR  sec.  52-236-5 prescribing materials and workmanship, which requires 
the use of all new equipment, material, and articles incorporated into 
the work required by the solicitation, and the IFB did not provide for 
any government-furnished equipment. 

The protester maintains that the original IFB requirement to install 
new light poles in the same approximate location as existing poles 
without specifically requiring the demolition and removal of existing 
poles created an ambiguity.  According to the protester, the amendment 
made it clear that reuse of the existing light fixtures was not 
permitted.  However, the amendment merely stated that contractors 
should bid as required by the solicitation.  The solicitation provided 
plans for the installation of poles that were of a different size and 
location than the existing poles and also included detailed plans for 
the installation of a different light assembly.  Contrary to the 
protester's argument, the amendment does not indicate what is to be 
done with the existing poles, but merely reiterates that the 
electrical work should be performed as required by the already extant 
plans and specifications.   Consequently, because the amendment did 
not place any new obligations on bidders, ABC's failure to acknowledge 
properly was waived as a minor informality.

The protest is denied.

Comptroller General 
of the United States