TITLE:  Lumus Construction, Inc., B-287480, June 25, 2001
BNUMBER:  B-287480
DATE:  June 25, 2001
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Lumus Construction, Inc., B-287480, June 25, 2001

Decision

Matter of: Lumus Construction, Inc.

File: B-287480

Date: June 25, 2001

Lewis R. Lear, Esq., City, Hayes, Meagher & Dissette, for the protester.

Wilson J. Campbell, Esq., Naval Facilities Engineering Command, 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

Protest of award on basis that awardee failed to acknowledge solicitation
amendment is denied where amendment provisions cited by protester merely
clarified existing solicitation terms, and where any price difference
attributable to those provisions is negligible; failure to acknowledge an
amendment that is not material may be waived as a minor informality.

DECISION

Lumus Construction, Inc. protests the award of a contract to S&S Mechanical
Contractors under invitation for bids (IFB) No. N62472-00-B-7515, issued by
the Department of the Navy for the replacement of a heating system at
Portsmouth Naval Shipyard in Kittery, Maine. The protester contends that
S&S's bid should have been rejected as nonresponsive because S&S failed to
acknowledge an amendment to the solicitation.

We deny the protest.

The IFB, issued on August 22, 2000, was amended twice. Amendment No. 1
provided answers to bidders' questions and extended the bid opening date;
amendment No. 2 further extended the opening date.

Five bids were received at bid opening on October 12. S&S submitted the low
bid of $269,500; Lumus's bid of $308,500 was second low. The S&S bid failed
to acknowledge amendment No. 1. The agency determined that amendment No. 1
was not material and that S&S's failure to acknowledge it thus could be
waived as a minor informality. On March 16, 2001, the agency awarded a
contract under the IFB to S&S. This protest followed.

Lumus generally contends that, since amendment No. 1 provided information
that could affect a bidder's price, it is material, so that the awardee's
failure to acknowledge the amendment cannot be waived. Specifically, the
protester identifies two questions and answers (Q&A), Nos. 2 and 7, that
were included in amendment No. 1 and which Lumus contends would have an
effect on bid pricing. The first one cited by Lumus, Q&A No. 2, refers to a
bidder's question about the meaning of a symbol (a small square with the
letter P inside it) appearing on a schematic drawing included in the IFB;
the agency responded that the symbol depicted a differential pressure
switch. Amend. No. 1 at 2. The next Q&A cited by the protester, No. 7,
relates to a bidder's inquiry as to the required distance of certain trench
piping

re-routing requirements; the agency responded that it was approximately
75 feet. Id.

The protester argues that, because the agency's response in Q&A No. 2 calls
for use of a differential pressure switch, which Lumus contends is a more
expensive piece of equipment than a pressure gauge (elsewhere depicted on
the same drawing by another engineering symbol, a small circle with the
letter P inside it), the agency's response necessarily affects bid pricing
and is thus material. Lumus argues that bid pricing is similarly affected by
the agency response in Q&A No. 7, since the bidder will need to provide
approximately 75 feet of piping.

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. Federal Constr., Inc.,
B-279638, B-279638.2, July 2, 1998, 98-2 CPD para. 5 at 2. A bidder's failure to
acknowledge an amendment that is not material, however, may be waived as a
minor informality. Federal Acquisition Regulation (FAR) sect. 14.405. [1] An
amendment is not material if it would have only a negligible effect on the
price, quantity, quality, or delivery of the item bid upon. FAR
sect. 14.405(d)(2). Further, an amendment is also not material where it does not
impose any legal obligations on the bidder different from those imposed by
the original solicitation; that is, where an amendment merely clarifies an
existing requirement or is a matter of form, the failure to acknowledge the
amendment should be waived and the bid should be accepted. Stanger Indus.,
Inc., B-279380, June 4, 1998, 98-1 CPD para. 157 at 3; Kalex Constr. & Dev.,
Inc., B-278076.2, Jan. 20, 1998, 98-1 CPD para. 25 at 2.

Our review of the record does not support the protester's position that
amendment No. 1's incorporation of Q&A Nos. 2 and 7 rendered that amendment
material. Since the bidder was already obligated to provide the required
heating system in accordance with the IFB's drawings, which drawings were
merely clarified by the terms of Q&A Nos. 2 and 7 in amendment No. 1, we
cannot find, as the protester suggests, that the challenged amendment terms
impose any additional legal obligations on the bidder. As to IFB drawing No.
M-9, referenced in Q&A No. 2, the agency reports, and the protester does not
refute, that the questioned symbol--i.e., the letter P in a small square--is
customarily recognized in the construction industry as depicting a
differential pressure switch; the amendment identifying it as such therefore
only clarified an existing requirement. [2] Likewise, as to the questioned
notation in drawing No. M-9, referenced in Q&A No. 7, the agency points out
that drawing No. M-5, which also depicts the required trench piping work,
was drawn to scale to show the required footage of that piping
(approximately 75 feet).

Furthermore, even if the information in Q&A Nos. 2 and 7 introduced new
obligations under the resulting contract, the record clearly shows, and the
protester does not refute, that such items would have, at most, a negligible
effect on the bidder's overall price. For example, the two differential
pressure switches (at approximately $422 each) and 75 feet of piping (at
approximately $16 per foot), would constitute only a de minimis amount (less
than 1 percent) of the S&S bid price of $269,500. Agency Report at 4-5.
Accordingly, since the record does not support

the protester's position that amendment No. 1 contained material terms, we
have no basis to question the agency's waiver of the awardee's failure to
acknowledge that amendment. [3]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Lumus argues that, because the FAR contemplates issuance of an amendment
only when the agency has "material reasons" for doing so, Comments at 3, the
fact that the agency issued the amendment here necessarily means that the
amendment is material. This argument is without merit. As noted above, the
FAR explicitly provides that a bidder's failure to acknowledge an amendment
may be waived where the amendment "involves only a matter of form or has
either no effect or merely a negligible effect on price, quantity, quality,
or delivery of the item bid upon." FAR sect. 14.405(d)(2). Thus the FAR
recognizes that not all amendments are per se material simply by virtue of
their issuance.

2. Lumus's contention that a differential pressure switch is more expensive
than another item also depicted on the drawing, a pressure gauge, is simply
not on point. As the agency points out, the drawing called for use of both
items; there is nothing in the IFB to indicate, as Lumus appears to suggest,
that bidders were to substitute the differential pressure switch for the
pressure gauge. Moreover, as discussed below, the relatively modest cost of
the differential pressure switch would have a negligible effect on price in
any event.

3. In its comments responding to the agency report, Lumus, for the first
time, cites additional Q&As in amendment No. 1 that it believes are material
terms that allegedly affect the price, quantity, and quality of the work bid
upon. These new contentions could have been raised at the time of Lumus's
initial protest submission, but were not. Accordingly, the allegations
raised for the first time in its report comments are untimely and will not
be considered. Bid Protest Procedures, 4 C.F.R. sect. 21.2(a)(2) (2001). We note
that, in any event, Lumus provides no specific support for its contention
that the additional terms are material, other than the conclusory statement
that they "are all material issues affecting quantity, quality and price."
Comments at 2.