Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Material amendment
General Counsel P.C. Highlight: In an Invitation for Bid, the bidder is required to acknowledge receipt of the IFB and all material amendments in order to be responsive and eligible for award.
In August 2009, the Department of Veterans Affairs (VA) issued an invitation for bids (IFB) for renovation and construction at the Lebanon VA Medical Center in Pennsylvania. Following its initial issuance, the IFB was amended eight times. Bidders for the contract were required to acknowledge each amendment when they submitted their bids, otherwise their proposals were in danger of being deemed unresponsive. Seawolf Construction Corporation submitted the lowest bid, but failed to acknowledge amendments 7 and 8. Cedar Electric, Inc. submitted the next lowest bid, and acknowledged all of the amendments. The contracting officer waived Seawolf’s failure to acknowledge amendments 7 and 8, and awarded the contract to Seawolf, after which Cedar Electric protested, first at the agency level and then to the GAO following the VA’s denial.
In its response to the Agency Report, Cedar Electrics did not argue that amendment 7 was material. Cedar Electrics’ principal did argue that amendment 8 was a material amendment that could not be waived. An amendment is determined to be material when it would have more than a negligible impact on price, quantity, quality or delivery. However, an amendment is not material where it does not impose any legal obligation on the bidder that is different from those imposed by the original solicitation, or it has a negligible impact n the relative standing of the bidders.
The amendment in question related to a schedule for finishes as part of the construction project at the Lebanon facility. The VA responded to the protest by claiming that amendment 8 is not material because the same schedule was referenced in amendment 5, which Seawolf had acknowledged. Alternatively, the VA argues that the price impact of amendment 8 is not significant in relation to the value of the total project, and thus is not material. GAO agreed with the VA. The inclusion of the schedule for finishes in amendment 8 did not constitute a change in the legal obligations of the bidders to meet the government’s requirements because the bidders were on notice of this requirement by virtue of its reference in amendment 5. Because amendment 8 was not a material amendment, GAO determined that the VA acted appropriately in waiving Seawolf’s failure to acknowledge this amendment, and therefore denied Cedar Electric’s protest.