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

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

   [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.