B-176963, FEB 22, 1973, 52 COMP GEN 544

B-176963, FEB 22, 1973, 52 COMP GEN 544

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA ACKNOWLEDGMENT - "TRIVIAL" AND "NEGLIGIBLE" EFFECT OF AMENDMENT WHEN AN AMENDMENT TO AN INVITATION FOR BIDS HAS ONLY A "TRIVIAL" OR "NEGLIGIBLE" EFFECT ON THE TOTAL PRICE OF A BID, THE FAILURE TO ACKNOWLEDGE AN AMENDMENT THAT DOES NOT AFFECT PRICE, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS, MAY BE WAIVED AS A MINOR INFORMALITY UNDER PARAGRAPH 2-405(IV)(B) OF THE ARMED SERVICES PROCUREMENT REGULATION, AND WHETHER THE CHANGE EFFECTED BY AN AMENDMENT IS TRIVIAL OR NEGLIGIBLE IN TERMS OF PRICE MUST BE DETERMINED IN RELATION TO THE OVERALL SCOPE OF THE WORK AND THE DIFFERENCE BETWEEN THE LOW BIDS. AN AWARD OF A CONTRACT FOR THE CONSTRUCTION OF A GYMNASIUM TO THE LOW BIDDER WHO FAILED TO ACKNOWLEDGED AN AMENDMENT THAT INCREASED COSTS BY $966 WAS NOT IMPROPER, WHERE THE DIFFERENCE BETWEEN THE LOW BID OF $702,000 AND THE NEXT LOW BID WAS $17,000, AND THE FAILURE HAD NO EFFECT ON THE COMPETITIVE STANDING OF BIDDERS. PRIOR INCONSISTENT DECISIONS OVERRULED.

TO THE FORTEC CONSTRUCTORS, FEBRUARY 22, 1973:

WE REFER TO YOUR TELEFAX AND LETTER DATED SEPTEMBER 11, 1972, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO MCGILVRAY, INCORPORATED (MCGILVRAY) UNDER INVITATION FOR BIDS DACA 01-72-B-0105, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, MOBILE, ALABAMA.

THE INVITATION WAS ISSUED ON JUNE 30, 1972, FOR THE CONSTRUCTION OF A GYMNASIUM AT HOMESTEAD AIR FORCE BASE, FLORIDA. THE INVITATION WAS REVISED BY FOUR AMENDMENTS, EACH OF WHICH CONTAINS A NOTATION WHICH STATES THAT "FAILURE TO ACKNOWLEDGE ALL AMENDMENTS MAY CAUSE REJECTION OF THE BID."

FIVE BIDS WERE RECEIVED AND OPENED ON AUGUST 1, 1972. MCGILVRAY'S BID WAS LOW AT $702,000 WHILE YOUR FIRM'S BID WAS SECOND LOW AT $719,000.

BY TELEGRAM AND LETTER DATED SEPTEMBER 11, 1972, YOU PROTESTED ANY AWARD TO MCGILVRAY BECAUSE THAT FIRM HAD FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 4. AWARD HAD BEEN MADE TO MCGILVRAY ON SEPTEMBER 11, PRIOR TO RECEIPT OF THE PROTEST.

AMENDMENT NO. 4 REVISED 11 OF 35 DRAWINGS AND SEVERAL SECTIONS OF THE SPECIFICATIONS INCLUDING INSULATION AND SOUND EQUIPMENT. ALTHOUGH YOU CONTEND THAT THE AMENDMENT INCREASED THE COST OF PERFORMANCE IN THE AMOUNT OF $4,497, THE ACTIVITY HAS ESTIMATED THAT IT AMOUNTED TO AN INCREASE OF $966. WE HAVE NO BASIS TO CONCLUDE THAT THE AGENCY'S ESTIMATE IS UNREASONABLY LOW.

THE PROCURING ACTIVITY HAS TAKEN THE POSITION THAT THE AMENDMENT RESULTED IN A "TRIVIAL" AND "NEGLIGIBLE" EFFECT ON THE TOTAL PRICE OF $702,000. THE AGENCY THEREFORE CONTENDS THAT MCGILVRAY'S FAILURE TO ACKNOWLEDGE THE AMENDMENT DID NOT AFFECT PRICE, QUANTITY, QUALITY, DELIVERY, OR THE RELATIVE STANDING OF THE BIDDERS, AND THAT SUCH A DEVIATION CONSTITUTED A MINOR INFORMALITY WHICH COULD BE WAIVED IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 405(IV)(B)).

ASPR 2-405(IV)(B) PROVIDES FOR WAIVER OF THE FAILURE TO ACKNOWLEDGE AN AMENDMENT IF "THE AMENDMENT CLEARLY WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS, ***."

YOU CONTEND THAT THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE AMENDMENT NO. 4 SHOULD NOT HAVE BEEN WAIVED BECAUSE THE AMENDMENT HAD A SIGNIFICANT EFFECT ON PRICE. ALTHOUGH WE CAN FIND NO CASES BEFORE OUR OFFICE WHERE THE FAILURE TO ACKNOWLEDGE AN AMENDMENT VALUED AT MORE THAN $200 HAS BEEN WAIVED BY A CONTRACTING OFFICER (SEE 44 COMP. GEN. 753, 756(1965) AND B- 175409, APRIL 14, 1972), WE HAVE NEVER ESTABLISHED THAT FIGURE AS THE STANDARD FOR DETERMINING "TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE ***." INDEED, WE DO NOT BELIEVE THAT ANY SPECIFIC FIGURE MAY BE DETERMINATIVE WITHOUT REFERENCE TO THE PARTICULAR FACTS. IN THAT CONNECTION, IT IS OUR VIEW THAT WHETHER THE CHANGE EFFECTED BY THE AMENDMENT IS TRIVIAL OR NEGLIGIBLE IN TERMS OF PRICE MUST BE DETERMINED IN RELATION TO THE OVERALL SCOPE OF THE WORK AND THE DIFFERENCE BETWEEN THE LOW BIDS.

WE BELIEVE THAT THE $966 AMOUNT REASONABLY MAY BE CONSIDERED TRIVIAL IN RELATION TO THE OVERALL COST OF THE JOB ($702,000) AND TRIVIAL IN THE CONTEXT OF THE $17,000 DIFFERENCE BETWEEN THE LOW BID AND YOUR FIRM'S NEXT LOW BID. IT IS CLEAR IN THIS CASE THAT MCGILVRAY'S FAILURE TO ACKNOWLEDGE AMENDMENT NO. 4 HAD NO EFFECT ON THE COMPETITIVE STANDING OF THE BIDDERS. SINCE WE FIND NO BASIS TO CONCLUDE THAT THE AWARD WAS IMPROPERLY MADE, YOUR PROTEST IS DENIED.

ANY OF OUR PRIOR DECISIONS INCONSISTENT WITH THE FOREGOING ARE HEREBY OVERRULED.