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.