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