TITLE:  Christolow Fire Protection Systems, B-286585, January 12, 2001
BNUMBER:  B-286585
DATE:  January 12, 2001
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Christolow Fire Protection Systems, B-286585, January 12, 2001

Decision

Matter of: Christolow Fire Protection Systems

File: B-286585

Date: January 12, 2001

Christos Christolow for the protester.

Wilson J. Campbell, Esq., Department of the Navy, for the agency.

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Amendment to an invitation for bids for the inspection, maintenance and
repair of fire protection systems was material, and a bid which failed to
acknowledge the amendment was properly rejected as nonresponsive, where the
amendment revised inaccurate information set forth in the bid schedule
regarding the number and types of, and response times applicable to, service
calls to be performed under the contract.

DECISION

Christolow Fire Protection Systems protests the rejection of its bid as
nonresponsive under invitation for bids (IFB) No. N62472-00-B-4741, issued
by the Department of the Navy, for the inspection, maintenance and repair of
certain fire protection systems at the Naval Air Station, Brunswick, Maine.

We deny the protest.

The IFB, issued on August 14, 2000, contemplated the award of a fixed-price
contract for a base period of 1 year with four 1-year options. The
contractor will be required to provide all labor, materials, and equipment
necessary to provide inspection, maintenance, repair, and alteration
services for the Naval Air Station's fire protection systems, which include
automatic sprinkler systems, as well as foam, gaseous, and dry and wet
extinguishing systems.

The bid schedule set forth contract line items for the base and each option
year of the contract. Contract line item numbers (CLIN) 0001 (base period),
0003 (first option), 0005 (second option), 0007 (third option), and
0009 (fourth option) were each comprised of 19 sub-CLINs, with each sub-CLIN
setting forth a definite quantity of work to be performed. [1] For example,
sub-CLIN 0001AA was for quarterly maintenance on 280 automatic sprinkler
systems during the base period. The solicitation also included "Fixed Price
Service Call Work" as definite quantity sub-CLINs, listing emergency,
urgent, and routine service call work as three separate sub-CLINs, each with
an estimated quantity of 10. According to the schedule, emergency calls
required a 4-hour response, urgent calls required a 24-hour response and
routine calls required a 14-day response. The IFB explained with regard to
this work as follows:

Performance of quality and thorough preventative maintenance on all
equipment and quality and thorough service calls will significantly reduce
the estimated quantity of work. Less than quality and thorough service call
work will likely result in the stated estimated quantity being low and the
Contractor having to respond to more service calls than estimated. . . .
Since the cost of service call work is included in the firm fixed price
portion of the contract, the total price (extended amount) bid for all
service call work is not subject to change regardless of the actual number
of service calls peformed for the duration of the contract.

IFB at C-21. The IFB included a description of "service call
classifications," which essentially set forth criteria for determining
whether a particluar service call would be considered either an "emergency
call" or "routine call." Id. at C-23. According to these provisions,
emergency calls required a 4-hour response and routine calls required a
7-day response (in contrast to the 14-day response required by the
schedule). The IFB did not contain any criteria for determining whether a
service call would be classified as "urgent," or mention urgent service
calls at all, with the exception of the sub-CLINs discussed previously
pertaining to urgent service calls.

On August 29, the agency issued amendment No. 0001 to the solicitation. This
amendment provided replacements for the pages of the bid schedule on which
CLINs 0001, 0003, 0005, 0007, and 0009 were set forth. In this regard, the
amendment revised the sub-CLINs pertaining to service calls by deleting the
sub-CLIN for "urgent" service calls, increasing the quantity of emergency
and routine service calls from 10 each to 24 each, stating in the schedule
that routine calls required a 7-day response, and noting on the schedule
that "[a]ctual service call count is not used in determining the payment to
the contractor." This amendment also added to the list of equipment to be
serviced a wet chemical extinguishing system located in another building at
the Naval Air Station. On September 8, the agency issued amendment No. 0002
to the solicitation.

The agency received four bids by the September 19 bid opening date, with the
protester submitting the apparent low bid of $643,362 and Southern Maine
Sprinkler submitting the next low bid of $838,400. Agency Report, Tab 4,
Abstract of Bids. The contracting officer noted on the abstract of bids that
the protester had not acknowledged amendment No. 0001. Id. In reviewing the
bids submitted, the contracting officer found that the protester had used
the bid schedule that had been included in the solicitation as initially
issued, rather than the bid schedule as revised by amendment No. 0001. The
contracting officer concluded that, because amendment No. 0001 increased the
scope of work by adding the wet chemical system in another building, and
increased the estimated number of emergency and routine service calls from
10 each to 24 each, the amendment was material. Agency Report, Tab 6,
Determinations and Findings Regarding Rejection of Bid Due to Failure to
Acknowedge Amendment 0001 to IFB. Accordingly, the agency rejected the
protester's bid as nonresponsive. This protest followed.

Generally, a bid that does not include an acknowledgment of a material
amendment must be rejected, because absent such acknowledgment, acceptance
of the bid would not legally obligate the bidder to meet the government's
needs as identified in the amendment. Dyna Constr., Inc., B-275047, Jan. 21,
1997, 97-1 CPD para. 31 at 3. An amendment is material where it imposes legal
obligations on the prospective bidder that were not contained in the
original solicitation, or would have more than a negligible impact on price,
quantity, quality, or delivery. Federal Acquisition Regulation sect.14.405(d);
Overstreet Elec. Co., Inc., B-283830; B-283830.2, Dec. 30, 1999, 2000 CPD para.
8 at 7. No precise rule exists to determine whether an amendment is
material; rather, that determination is based on the facts of each case.
Dyna Constr., Inc., supra.

Here, the estimates for the service calls that were included in the bid
schedule as initially issued understated the number of emergency and routine
service calls required of the successful contractor by 14 each, or more than
half. The initial schedule also included a classification of service
calls--urgent--that was not defined or mentioned elsewhere in the
solicitation. Also, the initial schedule conflicted with the IFB's
specifications in that it provided for routine service calls to be performed
within 14 days, rather than 7 days. In sum, the schedule provided inaccurate
information regarding the number and types of service calls to be performed
under the contract and the response time to routine service calls.

This information was especially important given the solicitation terms
providing that the contractor would be paid for the number of service calls
set forth in the schedule at the price bid, regardless of how many service
calls the contractor actually performed. In the absence of amendment No.
0001, the winning contractor ultimately could have argued that it was
entitled to a price increase because the number and types of service calls
set forth on the schedule were inaccurate and understated the estimated
number of emergency, routine, and total service calls to be performed, or
could have argued that it had 14 days to respond to routine service calls.
See The Hackney Group, B-261241, Sept. 5, 1995, 95-2 CPD para. 100 at 5. A
procuring agency is not required to enter into a contract which presents the
potential for litigation stemming from an ambiguity or inaccuracy in the
solicitation. Rather, an agency has an affirmative obligation to avoid
potential litigation by resolving solicitation ambiguities or inaccuracies
prior to bid opening. Amendments clarifying matters that could otherwise
engender disputes during contract performance are generally material and
must be acknowledged. Id. Accordingly, the agency acted properly in
rejecting the protester's bid as nonresponsive because it failed to
acknowledge amendment No. 0001 and was prepared using the initial bid
schedule, rather than the amended bid schedule included in amendment No.
0001, that set forth accurate information regarding the number and types of,
and response times for, the service calls to be performed.

The protester argues that it was improper for the agency to reject its bid
as nonresponsive for failure to acknowledge amendment No. 0001 because,
according to the protester, the bid package its representative obtained from
the Navy failed to include the amendment. Protest at 1.

It is a contracting agency's affirmative obligation to use reasonable
methods in disseminating solicitation documents to prospective competitors.
However, a prospective bidder or offeror bears the risk of not receiving a
solicitation amendment unless it is shown that the contracting agency made a
deliberate attempt to exclude the firm from competing, or that the agency
failed to furnish the amendment inadvertently after the firm availed itself
of every reasonable opportunity to obtain the amendment. Sentinel Sec. &
Patrol Servs., B-261018, Aug. 9, 1995, 95-2 CPD para. 67 at 3.

The protester knew or should have known that the bid package it obtained,
which included the IFB and amendment No. 0002, was incomplete in that it did
not include an amendment No. 0001. Under the circumstances, the protester,
when confronted with a bid package that obviously was missing amendment
No. 0001, had an obligation to contact the agency and obtain the missing
amendment. Accordingly, because the protester did not avail itself of every
reasonable opportunity to obtain the amendent, this aspect of the protest is
denied.

The protester requests that it be allowed to now acknowledge amendment
No. 0001. However, a bidder may not properly acknowledge an amendment after
bid opening because this would allow the firm to decide after bid opening
whether or not to render itself ineligible for award. Precise Constr.
Management, B-277872, Dec. 4, 1997, 97-2 CPD para. 156 at 2.

Finally, the protester questions the awardee's responsibility. Our Office
will not review an agency's affirmative determination of responsibility
absent a showing of fraud, bad faith, or misapplication of definitive
responsibiliy criteria. 4 C.F.R. sect. 21.5(c); Valley Forge Flag Co., Inc.,
B-283130, Sept. 22, 1999, 99-2 CPD para. 54 at 4 n.4. Definitive responsibility
criteria are not in issue, and the protester has not claimed, nor does the
record suggest, that the contracting officer's determination that the
Southern Maine Sprinkler was responsible was motivated by fraud or bad
faith.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. CLINs 0002 (base period), 0004 (first option), 0006 (second option), 0008
(third option), and 0010 (fourth option) were included as "indefinite
quantity work," and each was comprised of six sub-CLINs that set forth an
estimated quantity of work to be performed. Because the fixed-price,
indefinite-quantity portion of the solicitation is not relevant to the
resolution of this protest, it will not be discussed further.