Link: GAO Decision
Protestor: Morris, Inc.
Agency: Department of the Army
Disposition: Protest Denied.
Protest that an agency improperly allowed awardee to cure its failure to acknowledge a solicitation amendment is denied where the amendment was not material because it did not impose new legal obligations on the bidders.
General Counsel PC Highlight:
Morris, Inc. protested the award to Road Builders, Inc. of a contract for dredging of the Oahe Emergency Spillway Inlet Channel in Pierre, South Dakota. The IFB was amended three times, and bidders were required to acknowledge amendments when submitting a bid. Road Builders submitted the lowest price, but failed to acknowledge amendment 3. The CO determined that amendment 3 was a minor informality, and that it was in the government’s best interest to accept Road Builders’ bid, provided that Road Builders verify its bid, acknowledge the amendment, and state that its pricing was not affected by acknowledging the amendment.
Morris argued that amendment 3 was material, and that Road Builders’ failure to acknowledge the amendment’s requirement for three-faced rip rap rendered its bid nonresponsive. The agency pointed out that the change was only a matter of form because the stone was required to be approximately rectangular in cross-section, which necessarily meant that the rip rap must have at least three fractured faces. The GAO found no reason to question the agency’s determination that amendment 3 simply clarified an existing requirement, and did not impose additional legal requirements.
Offerors are typically required to acknowledge amendments when submitting a bid; failure to acknowledge a material amendment is grounds to determine that a bid is nonresponsive. However, an agency may waive a bidder’s failure to acknowledge an amendment if it is not material. So long as the amendment did not impose any legal obligations on the bidder different than those imposed by the original solicitation, the agency may waive the requirement or allow the bidder to cure their failure to acknowledge.