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.