TITLE: B-299393, Northern Sealcoating & Paving, Inc., March 30, 2007
BNUMBER: B-299393
DATE: March 30, 2007
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B-299393, Northern Sealcoating & Paving, Inc., March 30, 2007
Decision
Matter of: Northern Sealcoating & Paving, Inc.
File: B-299393
Date: March 30, 2007
Jay Zavala, Zavala Inc., for the protester.
Julia L. Perry, Esq., Federal Highway Administration, for the agency.
Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly rejected as nonresponsive a protester's bid that failed to
acknowledge a material solicitation amendment; the amendment was material
because it changed the color of exterior shingles, and specified the use
of cedar lap siding and a color additive for concrete.
DECISION
Northern Sealcoating & Paving, Inc. protests the rejection of its low bid
as nonresponsive under invitation for bids (IFB) No. DTFH71-07-B-00001,
issued by the Department of Transportation, Federal Highway
Administration, for resurfacing, grading, drainage, and pavement
reconstruction of Head of the Meadow Beach Road and Parking Area at the
Cape Cod National Seashore, together with the optional installation of a
restroom building at the site.
We deny the protest.
The IFB, issued on November 22, 2006, included in addition to the basic
resurfacing work, an option for the installation of a Romtec Model #1018
restroom facility. IFB sect. 646.04 at J-21. The IFB was amended on
January 5, 2007 to:
Revise the Special Contract Requirements (Section 646) to change the
exterior building style for the ROMTEC restroom facility.
Special Contract Requirement changes
Delete the 2^nd paragraph of Subsection 646.04 of the Special Contract
Requirements, page J-22 and substitute the following:
Amber colored shingles, cedar lap siding, brown concrete, smooth
exterior, stainless toilet paper dispensers, and a polyethylene urinal.
IFB amend. No.1, at 2.
The original IFB required the following features for the Romtec restroom
facility: "red shingles, gray concrete, smooth exterior, stainless toilet
paper dispensers, and polyethylene urinal." IFB sect. 646.04, at J-21.
Thus, the amendment made three changes to the specifications--it changed
the color of the exterior shingles from red to amber, added cedar lap
siding and required the use of a color additive to the concrete.
Four bids were received in response to the IFB by the January 9 bid
opening. Protest, Exh. C. Northern submitted the apparent low bid, but
failed to acknowledge receipt of amendment No. 001 prior to bid opening.
Finding that the amendment affected performance of the contract, and the
contractor's obligations under the contract, the agency rejected
Northern's bid as nonresponsive for failure to acknowledge a material
amendment. This protest followed.
Northern protests that the amendment was not material since it was
obligated under the terms of the IFB to provide Romtec's specific restroom
facility model #1018, and argues that its failure to acknowledge the
amendment was a minor informality that should have been waived since the
amendment had no effect on price, quality, quantity or delivery.
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 CDP 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) sect. 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 sect. 14.405(d)(2); Specialty
Contractors, Inc., supra, at 2.
Here, while the original IFB specified the Romtec restroom facility model
#1018, the record shows that this model comes with several options. For
example, purchasers have the option of brown or gray concrete color,
split-face or smooth exterior, and custom cedar, low or plank siding, or
stucco or stone exteriors. Romtec Website, http://www.romtec.com. The IFB
as originally issued required the following options: red shingles, gray
concrete, smooth exterior, stainless toilet paper dispensers, and
polyethylene urinal. The amended IFB changed the color of the shingles to
amber, changed the concrete to brown and added a cedar lap siding. The
agency maintains that the most significant change made by the amendment
was the addition of the cedar lap siding. According to the agency, while
cedar siding is more expensive, it is favored by the National Park Service
for its appearance and its ability to withstand exposure. The agency
contends that without Northern's acknowledgment of the amendment, it would
have no assurance that Northern intended to provide the more expensive
cedar siding.
Northern contends that its failure to acknowledge the amendment should be
waived since, according to Northern, the amendment imposed no additional
legal obligation on the contractor.[1] Northern states that, under the
terms of the IFB, it was obligated to deliver Romtec model #1018 and it
understood that colored shingles and colored concrete were required. In
addition, Northern contends that the details of the sketches provided with
the solicitation showed lap siding rather than log or plank siding. Since
the only lap siding available for this product is the more costly cedar
siding, the protester argues that its bid was improperly rejected.
We disagree. By failing to acknowledge this amendment, Northern was only
obligated to provide the agency a restroom built with red shingles and
gray concrete, when the agency required amber shingles and brown concrete.
Moreover, since the original IFB was silent with respect to the type of
siding required--notwithstanding Northern's contention that the drawings
depicted lap siding and that Romtec only has cedar lap siding--Northern
was under no obligation to provide the cedar lap siding the agency
required and could have provided a less expensive alternative.[2] In other
words, absent acknowledgment of the amendment here, Northern has not bound
itself to furnish the specified siding. Furthermore, even if an
amendment's impact on price is trivial, the amendment is material if it
affects the quality of performance in more than a negligible way. MIBO
Constr. Co., B-224744, Dec. 17, 1986, 86-2 CPD para. 678 at 2. The color
of an item can be a material requirement, as can compliance with a
pre-existing color scheme or other aesthetic considerations. Products for
Indus., B-257463, B-257463.2, Oct. 6, 1994, 94-2 CPD para. 128 at 2
(descriptive literature identifying color of workbenches and cabinets as
"gray" properly resulted in rejection of bid where IFB listed "black" as
the required color).
On this record, we view the amendment as material; without acknowledging
the amendment, Northern's bid does not represent a clear commitment by
that firm to furnish amber shingles, brown concrete or cedar lap siding,
and the bid is therefore nonresponsive.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] To the extent the protester believes its failure to acknowledge this
amendment can be waived because the amendment involves requirements for
the optional restroom installation, as opposed to the resurfacing work,
the protester is incorrect. The restroom installation is a mandatory
requirement, the price of which was to be added to the price of the
resurfacing effort to determine the lowest priced bidder. See e.g., Just
in Time Mfg., Inc., B-238998.4, Sept. 17, 1990, 90-2 CPD para. 220 at 3.
[2] The protester contends that its price for the restroom facility was
based on a quote from Romtec for cedar lap siding. However, the
protester's bid only contains a lump sum price for the restroom facility
and without Northern's acknowledgment of the amendment, the agency has no
assurance that Northern would provide cedar lap siding at the price
quoted.