B-400687; B-400687.2, DBI Waste Systems, Inc., January 12, 2009
1. 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.
2. 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.
DBI Waste Systems, Inc. (DBI),
The solicitation, which was for refuse removal at three
Boston-area VA facilities, including VA’s Jamaica Plain campus, Brockton
campus, and West Roxbury campus, was issued on Tuesday, September 23, 2008, and
publicized on the government-wide point of entry (GPE), FedBizOpps, at
approximately 3 p.m. on that day. AR, exh. 1,
Contracting Officer’s Statement (COS), at 2.
Proposals were due by ,
Monday, September 29. AR exh. 6. On Friday, September 26, VA amended the
solicitation, changing the requirement for a 4 cubic yard compactor under
contract line item (CLIN) 09 (
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.
This argument is without merit. 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.” Federal Acquisition Regulation (FAR) sect.
2.101. Protesters are charged with
constructive notice of the contents of procurement actions published on the
GPE. Herndon & Thompson, B‑240748,
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. See
(superseded) FAR sections 14.205-4 and 15.403.
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. See PR Newswire Ass’n, LLC, B-400430,
DBI asserts that, on several occasions, its president met
with two VA employees, who “indicated that they were not sure exactly what was
happening,” but that “VA would let [DBI] know the particulars of the bid once
the details were put in place.” Comments
at 3. However, even as recalled by the
protester’s president, these vague assurances did not include any specific
promise to provide a solicitation other than through legally required means, i.e.,
FedBizOpps, and, further, the agency advises that the employees in question worked
in the agency’s Environmental Management Service, not the contracting office.
FAILURE TO PUBLICIZE FOR 30 DAYS
DBI asserts that the agency improperly failed to publicize the solicitation for 30 days, as it claims is required under the FAR. Under our Bid Protest Regulations, protests of alleged RFP improprieties must be filed no later than the closing time for initial proposals. 4 C.F.R. sect. 21.2(a)(1) (2008). Here, the RFP as published on FedBizOpps specifically provided that proposals were due by September 29. Thus, any argument that this due date was inconsistent with the 30-day requirement had to be raised prior to that date. DBI’s protest was not filed in our Office until after award; accordingly, it is untimely and will not be considered. We point out that, while, as already discussed, DBI allegedly did not view the RFP prior to the closing time, this fact has no bearing on our conclusion; again, DBI was on constructive notice of the RFP and its contents by virtue of its posting on FedBizOpps.
AWARDEE’S FAILURE TO ACKNOWLEDGE AMENDMENT
As indicated above, on September 26, VA amended CLIN 09 of
the RFP, changing the phrase “4 CU YD compactor” to “4 CY CONTAINER.” AR exh. 2 at 1. DBI maintains that the record shows that
We find the waiver unobjectionable. In determining whether an amendment is material,
we look 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. See
Skyline ULTD, Inc., B-297800.3,
DBI asserts that the amendment was material because “a
compactor, including its wiring and installation, is far more expensive than a
mere container.” Comments at 12. 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,
The protest is denied.
Gary L. Kepplinger
The agency advises that none of the offerors acknowledged the amendment.