BNUMBER:  B-280643 
DATE:  November 2, 1998
TITLE: Enviromediation Services, LLC, B-280643, November 2, 1998
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Matter of:Enviromediation Services, LLC

File:     B-280643

Date:November 2, 1998

D. Lee Roberts, Jr., Esq., Long, Weinberg, Ansley & Wheeler, for the 
protester.
Kimberly A. Kegowicz, Esq., Department of Transportation, for the 
agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where solicitation amendment deleted one item of work, a deletion 
which had no effect on the price or the quality of the work required, 
bidder's bid was improperly rejected as nonresponsive for the failure 
to acknowledge receipt of the amendment.

DECISION

Enviromediation Services, LLC protests the rejection of its bid under 
invitation for bids (IFB) No. DTCG83-98-B-3WF199, issued by the United 
States Coast Guard for demolition of two housing units and 
construction of a parking lot.  Enviromediation's bid was rejected as 
nonresponsive because the firm did not acknowledge in its bid the 
receipt of an amendment which deleted one item of work.  
Enviromediation argues that since the price it bid for the deleted 
work can simply be deducted from its total bid price, it should 
receive the award based upon its low total bid price for the work 
under the amended IFB.

We sustain the protest.

The IFB required bidders to submit prices for a basic bid and three 
unit bid items.  IFB  sec.  B, at 3.  Under the basic bid, bidders were to 
submit one price for the removal and disposal of all indicated 
asbestos-containing materials in the two housing units prior to 
general demolition of the units, for procuring an independent sampling 
and testing company to perform testing for lead-based paint materials 
prior to general demolition of the units, for the demolition of the 
units and disposal of all demolition debris as normal construction 
debris, and for the removal and disposal of housing unit concrete 
slabs and footings, timber piles and utility lines.  Under unit bid 
item 001, bidders were to submit a price for the additional cost of 
disposing of demolition debris if it consisted of lead-based paint 
materials.  Unit bid item 002 required a price for the disposal of the 
concrete entrance drive and other miscellaneous site features and the 
construction of a new asphalt concrete parking area and court area.  
Unit bid item 003 required a price for the removal/disposal of the 
buried water supply or sanitary sewer piping of the two units, 
treating these as asbestos-containing material.  Id.  Prior to bid 
opening, in response to a request for information from a potential 
bidder pointing out that unit bid item 001 did not specify any 
"quantifiable data" regarding the lead-based paint debris or identify 
in the specifications "allowable method(s) of disposal," the IFB was 
amended to delete unit bid item 001, and a revised schedule was 
attached.  Request For Information from J.L. Young Enters., Inc., June 
5, 1998; IFB amend. 0001,  sec.  B, at 3. 

Eight bids were opened on June 25, 1998.  Total prices, apart from the 
Enviromediation bid, ranged from $142,990 to $230,817.97.  Abstract of 
Offers-Construction.  The government estimate for the work, as 
amended, was $164,988.  Id. at 1.  Enviromediation submitted prices 
for all four items with a total price of $178,324.  Enviromediation 
Bid at 1.  It did not acknowledge in its bid the receipt of the 
amendment deleting unit bid item 001--pricing the disposal of 
lead-based paint debris, if required.  Enviromediation submitted the 
original schedule and priced the lead-based paint debris disposal at 
$75,373.  Id. at 3.  If $75,373 was deleted from Enviromediation's 
bid, Enviromediation would be the low bidder with a total price of 
$102,951.  Abstract of Offers-Construction; Enviromediation's Bid at 
1.  After the Coast Guard rejected the Enviromediation bid as 
nonresponsive due to the failure to acknowledge the amendment, award 
was made to the low, responsive bidder.  Contracting Officer's Summary 
of Facts at 2.
  
The agency argues that the deleted unit bid item 001 lacked sufficient 
information to permit the computation of an intelligent bid price, and 
therefore the amendment correcting the deficiency was material.  
Accordingly, the agency asserts that Federal Acquisition Regulation 
(FAR)  sec.  14.405(d), which permits the failure to acknowledge an 
amendment to be waived if the amendment involves only a matter of form 
or has either no effect or merely a negligible effect on price, 
quantity, quality, or delivery, is inapplicable here.  Memorandum of 
Law at 2-4.  The agency notes that one bidder submitted in essence two 
bids:  one with prices for all four of the original items and one for 
the three items remaining in the amended IFB.  (The agency submitted 
this bidder's bids and two other bidders' similar bids subsequent to 
its submission of the agency report.)  The total price received for 
the three items on the amended bid schedule was greater than for the 
same three items on the unamended bid schedule.  This discrepancy 
shows, the agency argues, how the work involved in unit bid item 001 
could affect the prices bid on the other items and why it was 
imperative that prices based upon the amended IFB be submitted so that 
the low bidder could be determined with certainty.  Further, the 
agency argues that had Enviromediation's bid not been rejected as 
nonresponsive, that bidder would have been in the position of 
unilaterally deciding whether it would or would not accept the award 
by determining which interpretation of its prices would be adopted.  
Id. at 4.

Enviromediation contends that the mistake it made is simply a minor 
informality which may properly be corrected by deducting its bid price 
for the deleted item from its aggregate bid price.  It argues that the 
deletion of the item had no effect on its other bid prices since they 
would have stood on their own in view of the IFB provision that states 
that the item(s) "WILL BE AWARDED BY MODIFICATION WHEN AND IF 
REQUIRED."  (This provision also states that "THE PRICE(S) WILL REMAIN 
IN EFFECT FOR THE DURATION OF THE CONTRACT.")  IFB  sec.  B, at 4; Protest, 
July 23, 1998, at 4.

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 such factors 
as the price or the quality of the item being acquired; in the 
alternative, the contracting officer may waive such a minor 
informality or irregularity.  There is no precise rule for determining 
whether a change in requirements is more than negligible, Innovative 
Refrigeration Concepts, B-271072, June 12, 1996, 96-1 CPD  para.  277 at 2; 
rather, that determination is based on the facts of each case.  Day 
and Night Janitorial and Maid and Other Servs., Inc.,      B-240881, 
Jan. 2, 1991, 91-1 CPD  para.  1 at 4.  The mere fact that requirements have 
been changed by an amendment does not render the amendment material 
and does not, therefore, provide a basis for rejecting a bid that does 
not acknowledge the amendment.   See L & R Rail Serv., B-256341, June 
10, 1994, 94-1 CPD  para.  356 at 5-6 (protest sustained where the agency 
did not provide support for its assertion that a change in 
requirements was material).  In other words, in cases 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.  See Doty Bros. Equip. Co., B-274634, Dec. 
19, 1996, 96-2 CPD  para.  234 at 4 (rejection of an offer for failure to 
acknowledge an amendment which relaxed a solicitation requirement is 
improper).

We do not believe that the agency has established the materiality of 
the amendment, and we therefore conclude that the agency acted 
improperly in not permitting a waiver of Enviromediation's failure to 
acknowledge the amendment.  First, there is no reason for the 
requirement found in unit bid item 001 to have any effect on any of 
the other bid items.  It concerned simply any additional disposal 
costs that would be incurred for lead-based paint debris, and it is, 
as such, a distinct and separate requirement from all the other bid 
items.  The agency states that if lead paint is discovered, it would 
be treated as a changed condition and disposal costs would be subject 
to an equatible adjustment.  Memorandum of Law at 3.  Thus, the 
deletion of unit bid item 001 should have had no impact on the basic 
bid.  Second, contrary to the agency's position, the bids of the three 
firms which bid on both the original four items and on the amended 
three items do not establish that the deleted item affected the other 
line items.  One bidder (EME, Inc.), in addition to deducting its 
price for the deleted item from its total price, increased its prices 
for two, and decreased its price for one, of the remaining three items 
with the result that its new total price was slightly lower than if it 
had simply deducted its second item price from its original total 
price.  Again, the increased prices for the items requiring disposal 
of concrete and other site features and new construction and requiring 
disposal of water supply/sanitary sewer piping do not appear to have 
anything to do with disposing of lead-based paint debris.  The two 
other bidders that submitted separate original and amended bids 
increased their prices (on the amended bids) for some of the remaining 
three items, so that their amended prices for those three items were 
higher than their total prices for all four items on the original bid 
schedule.  See Bids of Asbestos Inspections, Inc. and Multi-State 
Contracting Corporation.  The fact that, after receiving the amendment 
deleting unit bid item 001, the bidders revised their bids for other 
items as identified above does not establish that the revisions were 
caused by the amendment.  There is no indication that the price 
revisions were related to the amendment, nor is there any reason that 
they should have been.

In view of our conclusion, we recommend that the agency waive 
Enviromediation's failure to acknowledge the amendment and make award 
to Enviromediation, if otherwise appropriate, for all items other than 
the deleted item after terminating the award it made to the second low 
bidder.  Finally, we recommend that Enviromediation be reimbursed the 
reasonable costs of filing and pursuing the protest.  The protester 
should submit its claim for cost, detailing and certifying the time 
expended and costs incurred, with the contracting agency within 60 
days after receipt of this decision.  Bid Protest Regulations, 4 
C.F.R.  sec.  21.8(d)(1), (f)(1) (1998).

The protest is sustained.

Comptroller General
of the United States