BNUMBER:  B-279638; B-279638.2 
DATE:  July 2, 1998
TITLE: Federal Construction, Inc., B-279638; B-279638.2, July 2,
1998
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Matter of:Federal Construction, Inc.

File:     B-279638; B-279638.2

Date:July 2, 1998

Abel Carreon for the protester.
Robert E. Korroch, Esq., United States Coast Guard, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected as nonresponsive bid that failed to include 
acknowledgment of a material solicitation amendment that affected 
contract performance by specifying the size and type of circuit 
breaker required by the agency, resolving solicitation ambiguity as to 
the actual circuit breaker required.

DECISION

Federal Construction, Inc. protests the rejection of its low bid as 
nonresponsive under invitation for bids (IFB) No. DTCGG1-98-B-QEE016, 
issued by the Department of Transportation, U.S. Coast Guard (USCG), 
for renovations to Chase Hall at the USCG Academy, New London, 
Connecticut.  Federal's bid was rejected as nonresponsive because it 
did not contain an acknowledgment of amendment No. A0001, which the 
agency considered material.  Federal contends that the amendment 
simply clarified solicitation terms and thus was not material; Federal 
asserts that its failure to acknowledge the amendment prior to bid 
opening should be waived as a minor informality.

We deny the protest.

The IFB, issued on February 13, 1998, was amended on March 6 to, among 
other things, add the following provision, regarding electrical wiring 
in the laundry room, to sheet 8 of 9 of IFB drawing No. CC-883-7050:

     Contractor shall provide new 200-amp circuit breaker (3-phase, 
     4-wire, 60-cycles) for new Laundry Room Circuit, to be compatible 
     with existing General Electric (GE) switchgear.  (Reference:  GE 
     breaker #TFJ236200).  Contractor shall provide all materials and 
     fittings for a complete circuit installation.

Amendment No. A0001 at 2.
The amendment was issued after a potential bidder pointed out that the 
IFB, as issued, did not identify the exact circuit breaker size or 
type required.  Potential bidders were advised that the amendment had 
to be acknowledged and that failure to do so could result in rejection 
of the bid.

Seven bids were received in response to the IFB by the March 16 bid 
opening.  Federal submitted the apparent low bid of $85,219, but 
failed to acknowledge receipt of amendment No. A0001 prior to bid 
opening.  Finding that the amendment affected performance of the 
contract and the contractor's obligations under the contract, the 
agency rejected Federal's bid as nonresponsive for failure to 
acknowledge a material amendment.  This protest followed.[1]

Federal protests that the amendment was not material since it only 
clarified the contractor's obligations under the contract, and that 
its failure to acknowledge the amendment should have been waived as a 
minor informality.

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.  
Specialty Contractors, Inc., B-258451, Jan. 24, 1995, 95-1 CPD  para.  38 at 
2.  On the other hand, a bidder's failure to acknowledge an amendment 
that is not material is waivable as a minor informality.  Federal 
Acquisition Regulation (FAR)  sec.  14.405.  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); Specialty Contractors, Inc., supra, at 2.

The IFB included, as an attachment, "specification # 7050," a detailed 
work statement for the project which, at section 16140, paragraph 
1.4A, regarding quality assurance for wiring devices, required 
contractor compliance with "NFPA 70, National Electrical Code" (NEC) 
provisions for devices and installation.  According to the protester, 
the NEC dictates which size of circuit breaker is to be used for 
certain types of cables, and an experienced electrical contractor 
could deduce from the IFB's cable descriptions that a 200-amp or 
225-amp circuit breaker would be required, depending on the cable 
involved.[2]  Despite the reference to the NEC, however, at least one 
prospective bidder had questioned the IFB's failure to specify the 
exact size and type of circuit breaker required for the laundry room 
electrical wiring work.  The agency issued amendment No. A0001 after 
agreeing that the IFB, as issued, failed to unambiguously set forth 
that only a 200-amp circuit breaker would be acceptable for the 
laundry room area.

The amendment provision specifying the 200-amp circuit breaker was 
considered a significant solicitation requirement because, according 
to the agency's electrical system inspector, no other size circuit 
breaker would fit the existing electrical equipment to be used at the 
location.  In this regard, the agency reports that although, as the 
protester points out, the IFB's incorporation of the NEC suggests that 
either a 200-amp or a 225-amp circuit breaker may be appropriate for 
the type of cables depicted in the relevant IFB drawing (at sheet 8 of 
9), the 200-amp circuit breaker is the only one that can be used here.

Specifically, the electrical system inspector states that installation 
of a 200-amp circuit breaker was intended by the agency since the 
laundry room circuitry was designed "to be fed from the existing 
32-year-old General Electric Switchgear.  The existing switchgear has 
one remaining slot.  That slot is sized for a 200-amp 3-pole breaker."  
Declaration of John Wakely at 1.  He further states that the existing 
copper bus bar (distributing the electrical current), intended to be 
used here, is also sized for a 200-amp circuit breaker.  Id.  As the 
contracting officer explains, the agency needed to amend the IFB to 
clearly provide that the agency wanted only a 200-amp unit here, since 
a 225-amp circuit breaker simply could not be physically accommodated 
by the existing equipment to be used under the contract; in fact, 
specifying a 200-amp unit was especially warranted given that, as the 
protester acknowledges, the NEC suggests use of a 225-amp circuit 
breaker for certain of the cables involved here.  Without the 
amendment, the agency considered the IFB defective in that the 
agency's circuit breaker needs were inadequately defined (since no 
size or type was identified for the laundry room circuitry and the 
existing electrical components (switchgear and panel) that were to be 
used were not adequately described); ambiguous (because the NEC may 
have suggested another size was acceptable); and could lead to 
potential litigation over the laundry room circuitry, namely the 
circuit breaker, actually required by the terms of the contract.

Federal contends that its failure to acknowledge the amendment should 
be waived since, according to Federal, the amendment imposed no 
additional legal obligation on the contractor.  Federal states that by 
the terms of the IFB, it was obliged to deliver the circuit breaker 
needed by the agency since whatever circuit breaker was provided would 
have to be compatible with existing equipment to achieve proper system 
operation.  Federal contends that since the NEC requires that "a 200 
amp or 225 amp protector shall be used for the cable," the contractor 
would already be obliged to provide a 200-amp circuit breaker even 
without the amendment.  Amended Protest at 10.  The protester asserts 
that its bid therefore was improperly rejected.

We disagree.  According to the protester's own statements, see id.; 
Protester's Comments on Agency Report at 10-12, even an experienced 
electrical contractor could interpret the IFB, as issued, as 
permitting either a 200- or a 225-amp circuit breaker, given the IFB's 
identification of the cables involved.  The agency has shown, however, 
that only the 200-amp circuit breaker will meet its actual needs, and 
the requirement for a 200-amp circuit breaker was not in the IFB 
specifications prior to the issuance of amendment No. A0001.  Without 
an acknowledgment of the amendment setting forth the required 200-amp 
size, it is unclear from Federal's bid which circuit breaker the 
protester agreed to deliver; if Federal's bid were accepted, the 
potential for contractor claims and litigation of the matter could 
arise.  It is just this type of potential litigation that the agency 
sought to avoid in issuing the specific 200-amp requirement in the 
amendment, which, in our opinion, reasonably resolved the solicitation 
defect prior to bid opening.  Air Quality Experts, Inc., B-256444, 
June 15, 1994, 94-1 CPD  para.  374 at 2.  Amendments clarifying matters 
which could otherwise engender disputes during contract performance, 
as here, are generally material and must be acknowledged.  Id.

In sum, the amendment did more than clarify the agency's 
requirement--it removed an ambiguity which affected the size of the 
circuit breaker.  Regardless of the price difference between the 200- 
and 225-amp circuit breakers, the amendment is material because it 
affects the quality of a required item, as well as the contractor's 
obligation to provide the amendment item.  ACC Constr. Co., Inc., 
B-277554, Sept. 22, 1997, 97-2 CPD  para.  84 at 2.  Since Federal's bid, 
without acknowledgment of amendment No. A0001, does not represent a 
commitment to perform exactly as 
required by the amendment, the agency properly rejected Federal's bid 
as nonresponsive. 

The protest is denied.

Comptroller General
of the United States

1. The Federal bid initially had been rejected as nonresponsive for 
failure to acknowledge the amendment, as well as for failure to submit 
a bid guarantee.  As Federal points out, however, subsequent 
communications to Federal from the agency indicated that the sole 
basis of rejection was the failure to submit the bid guarantee.  For 
that reason, Federal initially protested only the agency's rejection 
of its bid as nonresponsive for failure to submit a bid guarantee.  In 
response to that protest, the agency conceded that no bid guarantee 
was required under the IFB, rendering the protest basis academic.  
East West Research, Inc.--Recon., B-233623.2, Apr. 14, 1989, 89-1 CPD  para.  
379 at 2.  The agency, however, also notified Federal that, contrary 
to earlier information conveyed by agency personnel suggesting 
otherwise, the agency still considered the bid nonresponsive for 
failure to acknowledge the amendment.  Federal thereafter amended its 
protest to challenge the agency's determination that its bid was 
nonresponsive for failure to acknowledge the amendment.  We consider 
the amended protest timely in light of the agency's earlier 
inconsistent communications with the bidder regarding the basis for 
rejection of its bid.

2. The circuit breaker provides overcurrent protection to the 
electrical conductors by interrupting the electrical circuit for 
abnormal overcurrent conditions.  The agency points out that cables 
are required to be protected against overcurrent in accordance with 
their ampacities.  Contracting Officer's Statement at 4.