Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
- Protest that agency’s publishing of notice of solicitation on government-wide point of entry was inadequate because protester lacks internet access is denied; potential offerors are on constructive notice of solicitation notice published on GPE.
- Protest that awardee’s proposal was ineligible for award because it did not acknowledge solicitation amendment is denied where record establishes that amendment was immaterial; failure to acknowledge immaterial amendment was properly waived by agency.
General Counsel P.C. Highlight:
DBI asserts that the agency should have provided it with individual notice of the RFP, in addition to the notice on FedBizOpps, based on its status as an incumbent and the agency’s course of dealing with it in this and in prior acquisitions in which DBI asserts it was orally notified of the solicitation. GAO states that FedBizOpps has been designated as the GPE, the single point where Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public. Protesters are charged with constructive notice of the contents of procurement actions published on the GPE. The doctrine of constructive knowledge imputes knowledge to a party without regard to the party’s actual knowledge of the matter at issue. Accordingly, the notice of the RFP published on FedBizOpps was legally sufficient, and the fact that DBI may not have had actual knowledge of the RFP is not determinative here.
DBI’s status as an incumbent contractor did not operate to impose some greater notice obligation on the agency. At one time–but no longer–the FAR required that bids shall be solicited from . . . the previously successful bidder or offeror for the requirement. However, the current FAR does not require such notice to incumbent contractors; thus, VA’s failure to provide actual notice to DBI provides no valid basis for protest. Nor did the agency’s prior practice of providing oral notice require the agency to provide DBI with actual notice of the RFP here.
On September 26, VA amended CLIN 09 of the RFP, changing the phrase 4 CU YD compactor to 4 CY CONTAINER. DBI argues that the record shows that WMI did not acknowledge the amendment, that its offer thus should have been rejected, and that the requirement should be resolicited. VA advises that the contracting officer determined that the amendment was not material, and therefore waived the failure to acknowledge the amendment as a minor informality. The protester does not agree that the amendment was immaterial. GAO states that in determining whether an amendment is material, GAO looks 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 failure to acknowledge the amendment renders the proposal unacceptable, an amendment is material where it imposes legal obligations on a party that are different from those contained in the original solicitation, or if it would have more than a negligible impact on price, quantity, quality, or delivery. The mere fact that requirements have been changed by an amendment, however, does not render the amendment material.
DBI asserts that the amendment was material because a compactor, including its wiring and installation, is far more expensive than a mere container. However, it appears from the record that there is no effective price difference between the two items. VA reports that all of the offerors submitted the same price for the compactor and the container CLINs, ASR exh. 1, and also has furnished an invoice indicating that DBI charges an identical rate for compactors and containers under its current contract. GAO also notes that the unacknowledged amendment related to only 1 of 35 CLINs. These considerations indicate that the change was not significant, and DBI has presented no evidence showing otherwise. Under these circumstances, GAO concludes that the amendment was not material and that the agency properly waived WMI’s failure to acknowledge it. The protest is denied.