BNUMBER:  B-279380 
DATE:  June 4, 1998
TITLE: Stanger Industries, Inc., B-279380, June 4, 1998
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Matter of:Stanger Industries, Inc.

File:     B-279380

Date:June 4, 1998

Sharon K. Stanger for the protester.
Monica Allison Ceruti, Esq., Department of the Air Force, 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

Agency improperly rejected as nonresponsive a low bid that 
acknowledged all amendments to an invitation for bids (IFB), but used 
an unamended bid schedule which had been corrected by amendment to 
indicate that a requirement for periodic preventive maintenance should 
contain a monthly unit price entry and an extended price entry for the 
9-month requirement rather than simply a lump-sum entry, where the bid 
commits the contractor to perform in accordance with the precise IFB 
requirements at the low price.  

DECISION

Stanger Industries, Inc. protests the rejection of its bid under 
invitation for bids (IFB) No. F41689-98-B-0001, issued by the 
Department of the Air Force, Air Educational and Training Command 
Contracting Squadron, Randolph Air Force Base, Texas, for commissary 
refrigeration upgrade and periodic preventive maintenance and 
emergency repair for commissary refrigeration systems and heating 
ventilating and air conditioning systems at Hanscom Air Force Base, 
Massachusetts. 

We sustain the protest.

The IFB, issued on November 17, 1997, contemplated the award of a 
fixed-price contract and contained a bid schedule listing five line 
items with a description of the required work, a quantity and unit 
designation, and spaces labeled "unit price" and "amount" for each 
item, along with one space calling for a total of the "amount" entries 
as the bid total.  Line item No. 0002 was for providing all necessary 
equipment to perform the contract and line item No. 0003 was for 
periodic preventive maintenance in accordance with the solicitation 
requirement at section 15995 that preventive maintenance commence 60 
days after the notice to proceed was issued by the contracting officer 
and continue until 90 days after the final acceptance date of the 
construction contract.  In addition, the solicitation specified a 
180-day period of performance for the upgrade.  

Prior to bid opening, a prospective bidder notified the contracting 
officer that there appeared to be a transposition error in the bid 
schedule with respect to line items Nos. 0002 and 0003.  The extant 
bid schedule indicated a 9-month quantity for performing the 
refrigeration upgrade requirements (line item No. 0002), and a 
lump-sum quantity of 1 for the periodic preventive maintenance (line 
item No. 0003).  After examining the bid schedule, the contracting 
officer concluded it did contain an error and issued amendment No. 
0002 on January 6, 1998, which changed the quantity and unit entries 
for line item No. 0002 from 9 months to one "LS" (lump sum), and for 
line item No. 0003 from one lump sum to 9 months.  

Four bids were received by the January 8 bid opening.  Stanger's bid 
of $691,291 was low and Nelson Refrigeration's bid of $733,874 was 
next low.  Although Stanger acknowledged all amendments, it submitted 
its bid on the original bid schedule and, as a result, entered a 
lump-sum entry only for line item No. 0003, and for 0002 as well.  
Nelson's bid contained a unit (monthly) entry of $5,740 and a total of 
$51,660 for line item No. 0003.  The contracting officer notified 
Stanger that the government suspected a mistake in its bid and asked 
Stanger to verify its bid.  On January 8, Stanger verified its bid.  
Because Stanger's verification was not specific, Stanger was again 
notified of a suspected mistake with respect to line items Nos. 0002 
and 0003.  By letter dated January 13, Stanger stated that it 
understood that line item No. 0002 was a lump-sum amount and fully 
understood that line item No. 0003 was a 9-month periodic maintenance 
amount.  Stanger also stated that it intended to include the amended 
bid schedule as part of its bid package but erroneously used the 
incorrect bid schedule.  By letter dated February 18, the Air Force 
informed Stanger that its bid had been rejected as nonresponsive 
because of Stanger's use of the superseded bid schedule.  On February 
27, Stanger protested to our Office.  The agency reports that it will 
not award the contract until the protest is resolved.

Stanger argues that its bid as submitted was responsive because the 
original bid schedule was nearly identical to the amended bid 
schedule, and its failure to use the amended schedule was a minor 
informality.  Stanger also maintains that the correction or waiver of 
its mistake would not affect the relative standing of, or be otherwise 
prejudicial to, other bidders.[1]

The Air Force takes the position that Stanger's failure to submit its 
bid on the amended bid schedule renders the bid nonresponsive because 
it is unclear "whether Stanger intended to be committed to the 
amendment's larger quantities or the original schedule's lesser 
quantity."  The agency's position is that Stanger's stated  lump-sum 
price for the "lesser quantity" of one for line item No. 0003 does not 
commit Stanger to provide the "greater quantity" of 9 months as 
required by amendment No. 0002.  The agency also maintains that 
Stanger's omission of a unit price for line item No. 0003 creates an 
ambiguity as to the unit price to be used to calculate payment for 
line item No. 0003.  The agency points out that, in accordance with 
the specifications, the period of performance for line item No. 0003 
is dependent upon completion of the construction portion of the 
contract, with payment calculated on a monthly basis.  Additionally, 
the agency maintains that if the period of performance for line item 
No. 0003 is actually 5 months or less, the second low bid would be 
less than Stanger's. 

As a general matter, where a bidder does not submit its price on a 
revised bid schedule listing additional work, but instead submits its 
bid on the original schedule, the mere acknowledgment of the amendment 
containing the revised bid schedule is not sufficient to bind the 
bidder to perform the additional work because it is not clear that the 
bidder has committed itself to perform the extra work for the price 
set forth in its bid.  3W American Enters., Inc., B-274410.2, Dec. 27, 
1996, 96-2 CPD  para.  242 at 3.  On the other hand, a lower bidder's 
failure to acknowledge an amendment that is not material should be 
waived as a minor informality.  Innovative Refrigeration Concepts, 
B-271072, June 12, 1996, 96-1 CPD  para.  277 at 2.  In this regard, Federal 
Acquisition Regulation (FAR)  sec.  14.405 provides that a contracting 
officer shall give a bidder an opportunity to cure a deficiency 
resulting from a minor informality or irregularity in its bid 
including the failure to acknowledge an amendment which has no, or 
merely a negligible, effect on price,  quantity, quality, or delivery 
of the item being acquired.  The contracting officer may also waive 
such a minor informality or irregularity.  Where the record does not 
establish that price is meaningfully affected by an amendment, for the 
amendment to be material, something about the change must reflect a 
legitimate need of the agency such that its requirements will not be 
met if the contractor performs to the unamended specifications.  Doty 
Bros. Equip. Co., B-274634, Dec. 19, 1996, 96-2 CPD  para.  234 at 4.  

Here, Stanger acknowledged amendment No. 0002, but failed to provide 
its pricing on the revised bid schedule.  The agency maintains that 
amendment No. 0002 changed the "quantity" of preventive maintenance to 
be provided from one lump sum to 9 months.  In fact, this does not 
constitute any substantive change in the required quantity of 
preventive maintenance.  Notwithstanding Stanger's failure to submit 
the requested monthly unit price for item No. 0003, it is clear from  
Stanger's bid that Stanger is committed to perform the preventive 
maintenance requirement in the manner required by the solicitation and 
for the duration required.  Both the original and revised bid 
schedules require that periodic preventive maintenance and emergency 
repair be performed in accordance with section 15995 of the 
specifications.  Section 15995 provides that preventive maintenance is 
to commence 60 days after the notice to proceed is issued and continue 
until 90 days after the final acceptance date of the construction 
contract.  Stanger acknowledged all amendments and clearly intended to 
obligate itself to perform this required preventive maintenance at its 
entered price of $27,000.  By using the old schedule form without a 
unit price entry, Stanger's low bid simply provided a lump-sum price 
for the 9 months of preventive maintenance.[2]  

The agency also argues that Stanger's omission of the unit price for 
item No. 0003 by itself renders its bid nonresponsive.  However,  the 
omission of a unit price does not render a bid nonresponsive when the 
low bid can be evaluated on a basis common to all bids; under these 
circumstances, the omission constitutes a minor informality that 
should be waived under FAR  sec.  14.405.  GEM Eng'g Co., Inc., B-231605.2, 
Sept. 16, 1988, 88-2 CPD  para.  252 at 2.  Here, the IFB did not provide 
that bids without unit prices would be rejected as nonresponsive and 
there is no doubt that Stanger's low bid commits the firm to perform 
the exact work required at a fixed price for the specified period of 
performance. 

The agency errs in asserting that, if the performance period is 
actually 5 months or less, then the second low bid would be lower than 
Stanger's.  As noted above, Stanger's total bid was $691,291 and the 
second low bid was $733,874, a difference of $42,583.  The second low 
bidder offered a price of $5,740 per month for a total of $51,660 for 
the required 9 months of preventive maintenance.  If preventive 
maintenance were needed for only 5 months, this would reduce the 
second low bid by only $22,960 ($5,740 monthly rate x 4 months fewer 
than the anticipated 9 months)--not nearly enough to bring that 
bidder's price below Stanger's, even if we assume, for the purposes of 
this analysis, that Stanger's bid for any period of preventive 
maintenance was a lump sum amount of $27,000.  Indeed, the second low 
bid would become low only if the preventive maintenance is needed for 
less than 2 months. Since the specifications call for preventive 
maintenance to be performed for at least 90 days after the final 
acceptance date of the construction contract, the minimum period for 
which preventive maintenance will be required is 3 months, so that 
Stanger's bid would be low under any foreseeable circumstances. 

In short, amendment No. 0002 did not require bidders to perform any 
additional work and was not otherwise material; either Stanger's 
failure to use the amended bid schedule and provide the requested unit 
price should have been waived by
the contracting officer as a minor informality or Stanger should have 
been given an opportunity to cure the deficiency.  FAR  sec.  14.405; Aqua 
Marine Constructors, supra.  Because the contracting officer instead 
improperly rejected the bid as nonresponsive, we sustain the protest.  

We recommend that the contract be awarded to Stanger, if it is 
otherwise eligible for award.  We also recommend that Stanger be 
reimbursed its costs of filing and pursuing this protest.  4 C.F.R.  sec.  
21.8(d)(1).  Stanger should submit its certified claim for costs, 
detailing the time expended and costs incurred, to the contracting 
agency within 60 days of receiving this decision.  4 C.F.R.  sec.  
21.8(f)(1). 

The protest is sustained.

Comptroller General
of the United States

1. Stanger also asserts that the solicitation was ambiguous and that 
the amendment was received too close to the bid opening date.  Both of 
these issues should have been raised prior to the January 8 bid 
opening date.  Protests alleging improprieties in a solicitation which 
are apparent prior to bid opening must be filed prior to bid opening.  
4 C.F.R.  sec.  21.2(a)(1) (1998).

2. If, in fact, the period of required prevention maintenance varies 
from the anticipated 9 months, a monthly unit price is readily 
ascertainable from Stanger's lump-sum bid.  Stanger's bid verification 
explicitly confirmed Stanger's recognition of the IFB requirement for 
9 months of preventive maintenance, and simple division permits the 
ascertainment of a $3,000 per month unit price.  See Aqua Marine 
Constructors, B-212790, Oct. 20, 1983, 83-2 CPD  para.  471 at 2.