Link: GAO Decision
Protestor: Infoshred LLC
Agency: Department of Veterans Affairs
Disposition: Protest Sustained.
Protest is sustained where agency rejected awardee’s quote for failure to acknowledge an amendment that was immaterial and did not impose any legal obligations on the contractor in addition to those to which it had already agreed.
General Counsel PC Highlight:
Infoshred LLC protested the agency’s rejection of its quotation for failure to acknowledge a solicitation amendment under an RFQ for shredding services at VA facilities in Connecticut. The RFQ was amended twice, with the first amendment answering a question by stating that shredding was to occur primarily off-site; Amendment 1 also contained a revised sample BPA. Amendment 2 provided further information about off-site shredding, revised the SOW, and contained a revised BPA with an updated PWS. Infoshred’s quotation contained an explicit acknowledgment of Amendment 2, but did not separately acknowledge Amendment 1. The agency determined that it was non-compliant for failure to acknowledge the first amendment, and its quotation was rejected.
Infoshred argued that Amendment 1 was not material because all of the requirements imposed by Amendment 1 were encompassed or superseded by Amendment 2, which it had acknowledged. Although Amendment 1 imposed legal obligations on the contractor regarding off-site shredding which were not contained in the original solicitation, the requirement for off-site shredding was contained in Amendment 2, which provided even more detail regarding the requirements. Amendment 2 also explicitly stated that it was “replacing” Amendment 1’s BPA and SOW. The GAO found that Amendment 1 was immaterial, and the agency’s rejection of Infoshred’s quote was therefore unreasonable.
Generally, a quotation may be rejected for failure to acknowledge a material amendment. Whether an amendment is material is a factual determination that varies by case, but if it imposes legal obligations on the contractor that were not contained in the original solicitation or subsequent amendments, the GAO will typically find the amendment to be material. Although vendors should ensure that they acknowledge every amendment, there is the possibility of protesting or obtaining corrective action should their quotation be rejected for failure to acknowledge. If your quotation is rejected, carefully review each amendment to determine whether you failed to acknowledge a material amendment, or if the amendment had been superseded by later amendments. When in doubt as to whether an amendment is material, it is always best to acknowledge every amendment.