Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Acknowledging Amendments
General Counsel P.C. Highlight: An amendment to an RFP is material, and therefore must be acknowledged in the proposal, where it imposes legal obligations on the contractor that were not contained in the original solicitation.
MG Mako, Inc. protests the rejection of its proposal for failure to acknowledge a solicitation amendment under a request for proposals (RFP), issued by the Department of the Army for maintenance, repair, construction, and design/build services in support of National Guard activities in Southern California.
The RFP, issued as a small business set-aside, as a multiple award indefinite-delivery/ indefinite-quantity (ID/IQ) contract contemplates the award of multiple task orders over a two-year base period and three one-year option periods.
As relevant here, the solicitation involves substantial electrical work. The RFP contains over 80 pages of detail regarding the electrical requirements of the procurement. In a conference call with the parties, the agency explained that the scope of work involves 30 panels and roughly 600 circuits. The agency issued amendment 2 to the solicitation. Amendment 2 contained the agency’s responses to requests for information. As relevant here, paragraph A27 of the amendment stated that “[t]he utility work to be done that is labeled as ‘by utility’ shall be done during the construction period of this project and the contractor shall coordinate with the Utility to schedule this work to minimize electrical outages.”
MG Mako submitted a proposal by the due date set forth in the solicitation. After reviewing the proposal, the agency rejected it as non-responsive for failure to acknowledge amendment 2.
MG Mako contends that amendment 2 is not material because it merely clarified existing contract performance requirements and thus did not affect the legal relationship of the parties. GAO states that in determining whether an amendment is material, it 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 the failure to acknowledge the amendment renders the proposal unacceptable, an amendment is material where it imposes legal obligations on the contractor that were not contained in the original solicitation.
The agency explains, and GAO agrees, that given the complexity of the electrical work involved in this procurement, the effort to plan for electrical outages can be complex and convoluted. Thus, unless the RFP imposed a requirement to coordinate outages with the local utility, the contractor and the local utility could schedule their outages independently of each other to maximize the efficiency of each one’s work, which would not minimize the outages. The requirement added in paragraph A27 of amendment 2, requiring that the contractor coordinate with the local utility, recognizes that the project will necessarily involve some outages by the local utility and some outages by the contractor. In essence, this provision requires that the contractor work with the utility company to make those outages minimal, for example, by rescheduling its outage work to occur during an outage by the local utility, or requesting the local utility to reschedule an outage to a time that best suits the contractor.
GAO concludes that the amendment affects the legal relationship of the parties and therefore is material. The protest is denied.