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FAR 14.208:  Amendment - Materiality

Comptroller General - Key Excerpts

Here, while the original IFB specified the Romtec restroom facility model #1018, the record shows that this model comes with several options. For example, purchasers have the option of brown or gray concrete color, split-face or smooth exterior, and custom cedar, low or plank siding, or stucco or stone exteriors. Romtec Website, http://www.romtec.com. The IFB as originally issued required the following options: red shingles, gray concrete, smooth exterior, stainless toilet paper dispensers, and polyethylene urinal. The amended IFB changed the color of the shingles to amber, changed the concrete to brown and added a cedar lap siding. The agency maintains that the most significant change made by the amendment was the addition of the cedar lap siding. According to the agency, while cedar siding is more expensive, it is favored by the National Park Service for its appearance and its ability to withstand exposure. The agency contends that without Northern’s acknowledgment of the amendment, it would have no assurance that Northern intended to provide the more expensive cedar siding. Northern contends that its failure to acknowledge the amendment should be waived since, according to Northern, the amendment imposed no additional legal obligation on the contractor. Northern states that, under the terms of the IFB, it was obligated to deliver Romtec model #1018 and it understood that colored shingles and colored concrete were required. In addition, Northern contends that the details of the sketches provided with the solicitation showed lap siding rather than log or plank siding. Since the only lap siding available for this product is the more costly cedar siding, the protester argues that its bid was improperly rejected. We disagree. By failing to acknowledge this amendment, Northern was only obligated to provide the agency a restroom built with red shingles and gray concrete, when the agency required amber shingles and brown concrete. Moreover, since the original IFB was silent with respect to the type of siding required--notwithstanding Northern’s contention that the drawings depicted lap siding and that Romtec only has cedar lap siding--Northern was under no obligation to provide the cedar lap siding the agency required and could have provided a less expensive alternative. In other words, absent acknowledgment of the amendment here, Northern has not bound itself to furnish the specified siding. Furthermore, even if an amendment’s impact on price is trivial, the amendment is material if it affects the quality of performance in more than a negligible way. MIBO Constr. Co., B-224744, Dec. 17, 1986, 86-2 CPD para. 678 at 2. The color of an item can be a material requirement, as can compliance with a pre-existing color scheme or other aesthetic considerations. Products for Indus., B-257463, B-257463.2, Oct. 6, 1994, 94-2 CPD para. 128 at 2 (descriptive literature identifying color of workbenches and cabinets as “gray” properly resulted in rejection of bid where IFB listed “black” as the required color). On this record, we view the amendment as material; without acknowledging the amendment, Northern’s bid does not represent a clear commitment by that firm to furnish amber shingles, brown concrete or cedar lap siding, and the bid is therefore nonresponsive. (Northern Sealcoating & Paving, Inc., B-299393,March 30, 2007) (pdf)

A bidder’s failure to acknowledge a material amendment to an IFB renders the bid nonresponsive, since absent such an acknowledgment the government’s acceptance of the bid would not legally obligate the bidder to meet the government’s needs as identified in the amendment. Federal Constr., Inc., B-279638, B-279638.2, July 2, 1998, 98-2 CPD para. 5 at 2. An amendment is not material and the failure to acknowledge it should be waived as a minor informality where the amendment has no effect or merely a negligible effect on the price, quantity, quality, delivery of the item bid upon, or no effect on the relative standing of the bidders. Federal Acquisition Regulation sect. 14.405(d)(2); Kalex Constr. & Dev., Inc., B-278076.2, Jan. 20, 1998, 98‑1 CPD para. 25 at 2. Additionally, an amendment is not material where it does not impose any legal obligations on the bidder different from those imposed by the original solicitation; for example, where it merely clarifies an existing requirement or is a matter of form. Kalex Constr. & Dev., Inc., supra. Nevertheless, a procuring agency is not required to enter into a contract which presents the potential for litigation stemming from an ambiguity in a solicitation. ACC Constr. Co., B-277554, Sept. 22, 1997, 97-2 CPD para. 84 at 4. Rather, an agency has an affirmative obligation to avoid potential litigation by resolving solicitation ambiguities prior to bid opening, and amendments clarifying matters which could otherwise engender disputes during contract performance are generally material and must be acknowledged. Id. No precise rule exists to determine whether an amendment is material; rather, that determination is based on the facts of each case. Dyna Constr., Inc., B-275047, Jan. 21, 1997, 97-1 CPD para. 31 at 3. In rejecting Fort Mojave/Hummel’s bid and defending this protest, the agency only contends that only two of the items set forth in the amendment are material: one item pertains to the insulation of certain pipes and the other item pertains to the placement of certain pipes in five of the rooms in the vocational education building.

In our view, given the architect/project manager’s explanation and the IFB’s specifications and drawings, which provide that the buildings will be “concrete on ground” without crawl spaces, we agree that the solicitation, both as initially issued and as amended can only be read as requiring the same thing--the insulation of all interior storm drainage or downspout piping. Given that this aspect of the amendment does not have any effect on the work bid upon, that is, it does not impose any legal obligations on the bidder different from those imposed by the original solicitation or affect the quality or price of the project, it is at best a clarification of an existing requirement and cannot properly be considered material. As explained below, we agree with the protester that under either of the above interpretations provided by the architect/project manager, the amendment’s note that the piping in the rooms listed be placed “high in joist space,” viewed in the context of the solicitation as a whole, does not constitute a material change.[7] See Protester’s Post-Hearing Comments at 6. In this regard, we first note that this amendment affects only a small aspect of the IFB, which provides for the award of a comprehensive construction contract for nine new buildings totaling approximately 190,997 gross square feet, on a 24-acre parcel, with a contract value of more than $31 million. As discussed above, the architect/project manager explained that the requirement that certain piping be “run high in joist spaces” either was provided for by the IFB as issued, or required merely a slightly different placement of the piping in only five rooms in only one of the nine buildings to be constructed. Assuming the amendment is considered as requiring a slightly different placement of the piping (as opposed to merely clarifying the IFB requirements), the agency’s estimate of the cost impact of the amendment is negligible in the context of the contract as a whole--$10,000 versus $31,399,000 bid by Fort Mojave/Hummel. Moreover, because Fort Mojave/Hummel’s bid price is $365,000 lower than the next low bid, the $10,000 estimated cost of the slightly different placement of the piping would have no effect on the relative standing of the bidders. Under the circumstances, the addition of the note can best be characterized as no more than a minor modification of what was already required by the IFB, not, as the agency suggests, the imposition of a material, new and separate legal obligation. Thus, we do not agree with the agency that Fort Mojave/Hummel’s failure to acknowledge the amendment to the solicitation rendered its bid nonresponsive. See Head Inc., B-233066, Jan. 25, 1989, 89-1 CPD para. 82 at 4 (amendment’s change to a small portion of a sprinkler system from a sidewall type to an overhead type was not material in that it made only a minor modification to a requirement in the IFB and had de minimis effect on price). (Fort Mojave/Hummel, a Joint Venture, B-296961, October 18, 2005) (pdf)


A bidder's failure to acknowledge a material amendment to an IFB renders the bid nonresponsive, since absent such an acknowledgment the government's acceptance of the bid would not legally obligate the bidder to meet the government's needs as identified in the amendment. Federal Constr., Inc. , B-279638, B-279638.2, July 2, 1998, 98-2 CPD 65 at 2. An amendment is material only if it would have more than a trivial impact on the price, quantity, quality, delivery, or the relative standing of the bidders. Federal Acquisition Regulation (FAR) 14.405(d)(2); Kalex Constr. & Dev., Inc. , B-278076.2, Jan. 20, 1998, 98-1 CPD 25 at 2. An amendment is not material where it does not impose any legal obligations on the bidder different from those imposed by the original solicitation; that is, for example, where it merely clarifies an existing requirement or is a matter of form. Kalex Constr. & Dev., Inc. , supra. A bidder's failure to acknowledge an amendment that is not material is waivable as a minor informality. FAR 14.405; Overstreet Elec. Co., Inc. , B283830, B-283830.2, Dec. 30, 1999, 2000 CPD 8 at 7. Here, we find that amendment No. 0002 was not material because it only provided bidders with additional information about the location of the Harrison County Development Commission Dredge Material Disposal Area C-1 that was previously designated as the place where bidders were required to transport and dispose of the dredge material. The information regarding the precise location of this disposal site, while useful to bidders that may not have otherwise determined its location, did not impose legal obligations or requirements different from those contained in the original IFB, including amendment No.0001. See Angus Fire Armour Corp. , B237211.2, Jan. 18, 1990, 90-1 CPD 68 at 3.  (Singleton Enterprises, B-295562, February 25, 2005) (pdf)


We find that, as issued, the IFB was not clear as to whether the slab was to be removed. Our conclusion rests on our reading of the language in IFB 010101, General Requirements, which provides that

[t]he Range Front structure is a four-legged angle iron structure,

approximately 20 feet high, anchored to a concrete slab approximately

5' x 7' x 2'. The tower and slab are resting on the jetty capstones. The

Range Rear structure is land-based on the Bolivar Peninsula. It is a

Free standing steel galvanized tower approximately 90'tall bolted to a

23'x 23'x 4'thick concrete foundation. Id. , 1.1.2, at 1.

We think it is possible to read this language as the protester suggests--because "the Range Front structure" (the description is similar for "the Range Rear structure") was described as comprised of an "iron structure . . . anchored to a concrete slab," the requirement for removal of the "structure(s)" encompassed removal of the slab. However, we think it also is possible to read the provision as the agency did--because the language also refers to the tower itself as "a four-legged angle iron structure," the IFB as issued could be read as requiring removal of only the tower "structure(s)." Under these circumstances--where both interpretations of the IFB requirements were reasonable--the IFB as issued was ambiguous, and the amendment was necessary to require removal of the rear range slab. Since the estimated cost of removal of the slab was greater than the difference between Takota's and the next lowest bid--and therefore could have affected the outcome of the competition, assuming that one bidder may have included the cost while the other did not--the amendment was material. Takota's bid therefore was properly rejected as nonresponsive for failing to acknowledge the amendment. Eagle Const. Servs., Inc. , supra , at 4.  (Takota Corporation, B-294104, July 30, 2004) (pdf)


Further, an amendment is also not material where it does not impose any legal obligations on the bidder different from those imposed by the original solicitation; that is, where an amendment merely clarifies an existing requirement or is a matter of form, the failure to acknowledge the amendment should be waived and the bid should be accepted. Stanger Indus., Inc., B-279380, June 4, 1998, 98-1 CPD para. 157 at 3; Kalex Constr. & Dev., Inc., B-278076.2, Jan. 20, 1998, 98-1 CPD para. 25 at 2.  (Lumus Construction, Inc., B-287480, June 25, 2001)


A procuring agency is not required to enter into a contract which presents the potential for litigation stemming from an ambiguity or inaccuracy in the solicitation. Rather, an agency has an affirmative obligation to avoid potential litigation by resolving solicitation ambiguities or inaccuracies prior to bid opening. Amendments clarifying matters that could otherwise engender disputes during contract performance are generally material and must be acknowledged.  (Christolow Fire Protection Systems, B-286585, January 12, 2001)


Here, even the agency acknowledges that the unamended IFB contained a patent ambiguity concerning whether a card was required for item 6. What is also clear is that, in addition to this ambiguity, the unamended IFB contained no requirement obligating the contractor to furnish a bound in card for item 6, which represented the agency's need. Thus, amendment No. 1 imposed an additional material requirement on the contractor for a bound in card for item 6, that was clearly not contained in the original solicitation.[2] We conclude that amendment No. 1 was material and that the agency could not waive the failure of News to acknowledge this amendment without prejudice to the other bidders.  (John D. Lucas Printing Company, B-285730, September 20, 2000)


On its face, amendment 0001 merely reduced the minimum integrated short circuit rating for the branch circuit panelboards required by the IFB under specification section 16470, paragraph 2.2.5, from 65,000 amperes to 22,000 amperes. This change reduces the performance requirement for branch circuit panelboards from that initially required. Indeed, a bid that binds the bidder to provide branch circuit panelboards with the original higher minimum integrated short circuit rating would exceed the agency's amended minimum requirement. Agency Report at 17. It is also undisputed that the effect on price of reducing the minimum short circuit rating of the specified panelboards would be to reduce price. Thus, on its face, the amendment is immaterial. See Schuster Eng'g, Inc., supra, at 4.  (Overstreet Electric Company, Inc., B-283830; B-283830.2, December 30, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Northern Sealcoating & Paving, Inc., B-299393,March 30, 2007 (pdf) Fort Mojave/Hummel, a Joint Venture, B-296961, October 18, 2005 (pdf)
Singleton Enterprises, B-295562, February 25, 2005 (pdf) Jackson Enterprises, B-286688, February 5, 2001
Takota Corporation, B-294104, July 30, 2004 (pdf) John D. Lucas Printing Company, B-285730, September 20, 2000
Lumus Construction, Inc., B-287480, June 25, 2001 Enviromediation Services, LLC, B-280643, November 2, 1998
Christolow Fire Protection Systems, B-286585, January 12, 2001 Stanger Industries, Inc., B-279380, June 4, 1998
Overstreet Electric Company, Inc., B-283830; B-283830.2, December 30, 1999  
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