BNUMBER: B-278144.2
DATE: February 24, 1998
TITLE: Precise Construction Management, B-278144.2, February 24,
1998
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Matter of:Precise Construction Management
File: B-278144.2
Date:February 24, 1998
Steven E. Otto, Esq., Hillyer & Irwin, for the protester.
Rudy Ledbetter for C.D.M. Construction, Inc., an intervenor.
George N. Brezna, Esq., Paul V. Clay, Esq., Christopher Bellomy, Esq.,
and Lis B. Young, Esq., Department of the Navy, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
An agency properly waived as a minor informality a bidder's failure to
acknowledge an amendment to a solicitation where the amendment is not
material because it did not add any obligations or requirements, and a
change in one requirement could have had no more than a negligible
effect on price, quantity, quality, or delivery.
DECISION
Precise Construction Management protests an award to C.D.M.
Construction, Inc. under invitation for bids (IFB) No.
N63387-97-B-5354, issued by the Department of the Navy, Public Works
Center, for the replacement of barracks doors at the Marine Corps
Recruit Depot, San Diego, California. Precise Construction alleges
that CDM's bid is nonresponsive.
We deny the protest.
The agency received 18 bids in response to the IFB. CDM's bid was the
lowest at $295,236 and Precise Construction's bid was second lowest at
$309,500. CDM's bid did not acknowledge amendment No. 0003 to the
IFB.[1]
Precise Construction protested to our Office that CDM's bid was
nonresponsive because the amendment was material. The agency
determined that amendment No. 0003 was material and, on October 20,
rejected CDM's bid as nonresponsive for failing to acknowledge the
amendment. We therefore dismissed Precise Construction's protest as
academic. By letter of October 24, CDM protested the rejection of its
bid to the Navy.
The agency verbally requested Precise Construction to verify its bid.
By letter of November 12, Precise Construction did so. On December 1,
the Navy met with Precise Construction, at which time the agency began
discussing the issue of the materiality of amendment No. 0003.
Precise Construction's representative stated that he was not prepared
to discuss the terms of the amendment and requested a meeting at a
later date, which was scheduled for December 9.
By letter of December 2 to Precise Construction, the Navy stated that
amendment No. 0003 was not material and that CDM's bid would be
reinstated; this letter also confirmed the meeting scheduled for
December 9. Precise Construction did not attend the meeting on
December 9, but rather protested to our Office on December 12.
As a preliminary matter, the Navy requests dismissal of the protest as
untimely. The Navy alleges that it first informed the protester on
December 1 of the Navy's decision to reinstate CDM's bid, and merely
confirmed that decision in its letter of December 2. Since the
protest was filed more than 10 days after December 1, the Navy
contends that it is untimely.
To be timely, protests not based upon alleged improprieties in a
solicitation must be filed no later than 10 days after the basis of
protest is known or should have been known, whichever is earlier. 4
C.F.R. sec. 21.2(a)(2) (1997). Where doubt exists as to the timing of
when a protester first should have known of a basis for protest, we
will resolve such doubt in favor of the protester. Med-National,
Inc., B-232646, Jan. 12, 1989, 89-1 CPD para. 32 at 3.
The protester states that the December 1 meeting was arranged after
Precise Construction submitted its bid verification, and that it
attended the meeting believing that it was to be a pre-award
conference. Although the Navy's December 2 letter indicates that the
agency advised Precise Construction during the December 1 meeting of
the decision to reinstate CDM's bid, the protester contends that, on
December 1, the agency raised the issue of the materiality of
amendment No. 0003, but did not state that the agency had decided to
reinstate CDM's bid. The protester alleges that it first learned of
the agency's decision in the December 2 letter, which the protester
received on December 3. The protester contends that it timely filed
its protest within 10 days of receiving the letter.
Prior to the agency submitting its report, our Office requested the
Navy to submit either minutes of the December 1 meeting or statements
recalling the content of that meeting from agency personnel who
attended it. The agency has declined to do so. In contrast, the
protester's comments on the agency report include a sworn statement
from Precise Construction's representative at the meeting, in which he
recalled the content of the meeting and specifically denied that the
agency announced its decision to reinstate CDM's bid. Considering
these circumstances, we resolve any doubt in favor of the protester
and find that the protester first knew or should have known of the
agency's reinstatement decision upon receipt of the Navy's December 2
letter. Since the protest was filed within 10 days of the protester's
receipt of that letter on December 3, the protest is timely.
Precise Construction alleges that amendment No. 0003 is material
because it required all fire doors to have wire glass, required the
repositioning of steam and condensate lines at stated locations by
approximately 2 feet, and changed the galvanized coating designation
from G90 to A60. The protester alleges that CDM's bid is thus
nonresponsive for failing to acknowledge a material amendment.
A bidder's failure to acknowledge a material amendment to an IFB
renders the bid nonresponsive since, absent such 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.
G. R. Sponaugle & Sons, Inc., B-257784, Nov. 7, 1994, 94-2 CPD para. 178
at 2. On the other hand, a bidder's failure to acknowledge an
amendment that is not material is waivable as a minor informality.
Id.; Federal Acquisition Regulation (FAR) sec. 14.405(d)(2). 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, quality, or delivery. FAR sec. 14.405(d)(2); G.R.
Sponaugle & Sons, Inc., supra. Here, as explained below, amendment
No. 0003 is not material, and thus a bidder's failure to acknowledge
it properly could be waived as a minor informality. DeRalco, Inc., 68
Comp. Gen. 349, 351-52 (1989), 89-1 CPD para. 327 at 3-4.
Amendment No. 0002, which CDM's bid did acknowledge, stated at item
No. 6 that fire doors were required to have "1/4 [inch] thick wire
glass" and the other doors were to have "1/4 [inch] thick clear
tempered" glass. Amendment No. 0003, which CDM's bid did not
acknowledge, at item No. 2, added the following paragraph to section
08110 of the IFB:
2.9 GLAZING
Fire doors to receive clear wire glass and all other doors to
receive clear tempered glass.
Since amendment No. 0002 had previously stated this very requirement
(with more specificity), amendment No. 0003 added no requirement for
glass in the fire doors.
Item No. 4 of amendment No. 0002 added the following pipe relocation
requirement to the building layout drawings that were part of the IFB:
NOTE: Relocate the 3 [inch] steam line and 3 [inch] condensate
lines that are outside the first floor mechanical rooms so that
new doors 105 and 112 at each building open without any
obstruction.
Item No. 5 of amendment No. 0003 added the following sentence onto the
end of this note:
This repositioning is approximately 2 [feet] away from their
present location.
The repositioning requirement stated in amendment No. 0002 was in
response to a question raised by a bidder who had attended the site
visit and noticed that the steam pipes would interfere with opening
certain doors. The note added by amendment No. 0002 clearly stated
that bidders were required to relocate the pipes so the doors at the
stated locations would "open without any obstruction." The estimated
relocation distance added by amendment No. 0003 did not change this
obligation, inasmuch as 2 feet is a relocation distance one could
reasonably anticipate when considering the unobstructed operation of a
swinging door; the protester has not provided evidence to the
contrary.[2]
Finally, amendment No. 0003, item No. 1, changed the galvanized metal
coating designation from G90, as originally required by the IFB, to
A60. The G90 coating is apparently thicker and more resistant to
corrosion than the A60 coating. The impetus for this change was
comments received by the agency from suppliers that doors with the G90
coating were difficult to obtain. The agency discussed the coating
issue with a representative from the Steel Door Institute, who advised
it that using the thicker G90 coating presented more difficulties in
the manufacturing process than did the A60 coating, but once
manufactured, painted, and installed, there was no discernable
difference in the functionality, reliability, maintainability, wear
and failure rates, or cost between doors with either coating. The
protester has provided no evidence to the contrary.[3] We thus
conclude that this change had a negligible effect on price, quality,
quantity, or delivery; if anything, the change represented a
relaxation of the specifications.
Since amendment No. 0003 either did not change the existing
requirements of the solicitation, or such change was negligible, the
Navy properly waived as a minor informality under FAR sec. 14.405(d)(2),
CDM's failure to acknowledge amendment No. 0003. The protester has
presented no valid objection to the reinstatement of CDM's bid.
The protest is denied.
Comptroller General
of the United States
1. CDM had submitted its bid prior to the distribution of amendment
No. 0003. After bid opening, CDM advised the agency that it had faxed
its acknowledgment of the amendment to the agency before bid opening.
The agency's investigation found no evidence that agency had received
such an acknowledgment.
2. We also note that section 00100, paragraph 1.17 of the IFB states
that bidders had the responsibility for ascertaining the conditions
affecting the work and were to take whatever other steps may be
necessary in order to understand the site conditions which could
affect cost.
3. The protester submitted a written opinion from its engineering
consultant who also concluded that the change in the coatings "has a
negligible effect on the contract," and, in fact, that the A60 doors
would be easier to paint.