TITLE: B-297800.3, Skyline ULTD, Inc., August 22, 2006
BNUMBER: B-297800.3
DATE: August 22, 2006
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B-297800.3, Skyline ULTD, Inc., August 22, 2006

   Decision

   Matter of: Skyline ULTD, Inc.

   File: B-297800.3

   Date: August 22, 2006

   Albert B. Krachman, Esq., and Brian S. Gocial, Esq., Blank Rome LLP, for
   the protester.

   Adele Ross Vine, Esq., General Services Administration, 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 challenging rejection of proposal for failure to acknowledge
   solicitation amendment is denied where amendment contains material terms
   affecting legal relationship of the parties, including obligation for
   contractor to monitor changes in foreign travel danger area status and
   promptly coordinate such changes with contracting agency.

   DECISION

   Skyline ULTD, Inc. protests the rejection of its proposal for failure to
   acknowledge solicitation amendments under request for proposals (RFP) No.
   6FG2005MTV00001, issued by the General Services Administration for
   information technology services. Skyline contends that the amendments are
   not material and that its failure to acknowledge them should be waived as
   a minor informality.

   We deny the protest.

   The RFP, set aside for service-disabled, veteran-owned small businesses,
   provides for the award of multiple indefinite-delivery,
   indefinite-quantity contracts for information systems engineering,
   operation, and maintenance services for a 5-year base period and a 5-year
   option period. RFP at F-1, L-1, L-14. The RFP advised that the agency
   intended to make all awards on the basis of the offerors' initial
   proposals without conducting discussions. Id. Each proposal was to be
   initially evaluated for "acceptability," including a review for
   "completeness and adherence to instructions." Id. at M-1. "Any material
   failure to follow directions (nonconformance)," including the omission of
   "required information of a material nature," was to result in rejection of
   the proposal. Id. In this regard, all offerors were advised that "[o]ffers
   that fail the Acceptability review will not be considered further." Id.
   Awards were to be made to the firms with proposals determined to offer the
   overall best value to the agency considering price and technical factors.
   Id. at M-1, M-2.

   Acceptability reviews were performed for each proposal submitted by the
   scheduled closing time. Skyline's proposal failed the acceptability review
   and was rejected from further consideration for award because it failed to
   acknowledge receipt of two solicitation amendments which the agency
   considered to be material.[1] This protest followed.

   The RFP advised offerors that performance of the work could take place in
   locations subject to designation by the State Department as foreign travel
   danger areas; in this regard, for existing orders, the contracting officer
   was to determine whether or not performance would continue despite such
   designation. RFP sect. B-10. One of the amendments that Skyline failed to
   acknowledge, amendment No. 6, revised the RFP's "foreign area travel/work"
   terms. Specifically, regarding changes in foreign travel danger area
   status (i.e., where the State Department warns Americans not to travel to
   an area or issues danger pay for work there), the amendment provided that
   "[c]ontractors have an affirmative duty to monitor area status during
   order performance and promptly coordinate with the applicable [ordering
   contracting officer] on changes in area status." RFP amend. 6 at 3.

   The agency explains that this additional, affirmative requirement for the
   contractor to specifically monitor changes in danger area status will
   better protect the government in terms of potential liability for damages
   that might result from a delay in agency contracting personnel learning of
   a change in status, and a resulting delay in determining whether or not to
   continue performance of existing orders. The agency explains that prior to
   the amendment, the government was solely responsible for monitoring area
   status changes, since there was no explicit requirement for the contractor
   to do so. The agency also asserts that, without the amendment, it may face
   greater litigation risk in contractor disputes for recovery of losses or
   injuries that could occur from a delay in agency action to halt contract
   performance or protect contractor personnel due to a delay in learning of
   a change in foreign travel danger area status. In this regard, according
   to the agency, requiring the contractor to monitor foreign travel danger
   area status changes will provide an additional means for the agency to
   learn of such changes quickly, which will better ensure that the agency
   can promptly determine whether contract performance should or should not
   continue, and may also limit the agency's potential liability for
   contractor losses, since the contractor shares in the responsibility to
   monitor the danger status and promptly coordinate the change in status
   with the agency.

   In determining whether an amendment is material, we look at the facts of
   each case. While no precise rule exists as to whether a change required by
   an amendment is more than negligible, such that the failure to acknowledge
   the amendment renders the proposal unacceptable, see Navistar Marine
   Instrument Corp., B-277143.2, Feb. 13, 1998, 98-1 CPD para. 53 at 2, an
   amendment is material where it imposes legal obligations on the contractor
   that were not contained in the original solicitation. Id.

   Here, the protester contends that amendment No. 6 is not material because
   it merely clarified existing contract performance requirements and thus
   did not affect the legal relationship of the parties. Specifically, the
   protester asserts that, despite its failure to acknowledge the amendment,
   it would be obliged to monitor foreign travel danger area status changes,
   since its proposal generally offers to review policies affecting contract
   performance. We disagree. As the agency points out, prior to issuance of
   amendment No. 6, there was no specific requirement in the RFP obligating
   the contractor to affirmatively monitor foreign travel danger status
   changes and to promptly coordinate any such change with the contracting
   agency. Since there was no such requirement in the RFP, Skyline's offer to
   generally review policies regarding contract peformance does not
   constitute an agreement to the specific obligations imposed by amendment
   No. 6. Consequently, we cannot agree with the protester that amendment No.
   6 did no more than clarify existing obligations of the contractor. [2]

   In light of the amendment's addition of contractor obligations to monitor
   and coordinate action regarding changes in foreign travel danger area
   status, and the agency's additional rights derived from those
   requirements, we conclude that the amendment affects the legal
   relationship of the parties and therefore is material. See Federal
   Constr., Inc., B-279638, B-279638.2, July 2, 1998, 98-2 CPD para. 5 at
   4-5. Consequently, the protester's failure to acknowledge it cannot, as
   Skyline requests, be waived as a minor informality. See T&S Maint. Servs.,
   B-278598, Feb. 18, 1998, 98-1 CPD para. 54 at 2-3. Accordingly, we see no
   basis to object to the agency's rejection of the proposal for failure to
   acknowledge amendment No. 6.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

   ------------------------

   [1] The protester's proposal was rejected for failing to acknowledge
   amendment Nos. 4 and 6. This decision, however, only discusses the
   protester's failure to acknowledge amendment No. 6, since, in its report
   responding to the protest, the agency concedes that the firm
   constructively acknowledged amendment No. 4 by incorporating some of the
   administrative requirements (for instance, regarding font and format of
   proposals) set out in that amendment. Given our conclusion as to the
   materiality of amendment No. 6, as discussed further in this decision, the
   rejection of the firm's proposal for failure to acknowledge that amendment
   alone constitutes a proper basis for rejection of the proposal;
   accordingly, we need not discuss further the terms of amendment No. 4 or
   the protester's failure to formally acknowledge its receipt.

   [2] We note that, in its comments Skyline for the first time contends
   that, because the RFP, at sect. B-10, generally provides that work in
   areas designated as dangerous is unauthorized, the expectation by the
   agency that the amendment will lessen its risk of liability for contractor
   losses or injuries is misplaced; Skyline essentially argues that the
   contractor would be performing in (or would still be located in) such area
   at its own risk. The argument, which was not raised in the initial protest
   although based on solicitation terms known to the protester at that time,
   is untimely. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2006). We
   note, in any event, that the protester has not shown how this general
   provision renders unreasonable the agency's view that its risk of delayed
   action in response to danger area status changes will be lessened by
   requiring the contractor to monitor danger area status changes and to
   promptly coordinate action with the agency (performance requirements not
   challenged by Skyline prior to submission of its proposal as ambiguous or
   otherwise), since, as discussed above, the contractor's responsibility to
   do so provides legitimate protections for additional prompt notice of area
   status changes to the agency.