Protest of Rejection of Bid as Nonresponsive

B-203324: Oct 19, 1981

Additional Materials:


Office of Public Affairs
(202) 512-4800

A firm protested the General Services Administration's (GSA) rejection of its bid because of failure to acknowledge receipt of an amendment which added certain snow removal tasks to the contractor's responsibilities. The protester alleged that: (1) it was not informed of any amendment prior to bid opening; (2) the change to the original solicitation was not material enough to affect its bid which was firm and reconfirmed upon request of the contracting officer; and (3) GSA intentionally withheld the amendment from all but two bidders. The protester contended that GSA had blatantly misled GAO as to the facts of the case in that, according to the protester, the snow removal tasks were part of the solicitation prior to any amendment. In support of this contention, the protester supplied GAO with a piece of paper on which the snow removal clause appears, which the protester states was copied from the solicitation. The protester suggested that, since the snow removal was already included in the original solicitation, its failure to acknowledge the amendment could be waived as immaterial. GAO believed that the protester's contention rested upon a misunderstanding of the record. The discussion of snow removal in the original solicitation was not specific; the subsequent amendement specified the contractor's responsibilities. The paper produced by the protester in fact was the clause proposed by the building manager and subsequently contained in the amendment. It is clear from the record that there was no snow removal clause in the original solicitation. GAO has held that the bidder bears the risk of nonreceipt of solicitations and amendments. If a bidder does not receive and acknowledge receipt of a material amendment to a solicitation and such failure is not a deliberate and conscious effort to exclude the bidder from participating in the competition, the bid must be rejected as nonresponsive. The protester provided no proof that any bidders were excluded from receiving the amendment, and GSA stated that the amendment was sent to each bidder on the bidders list. In addition, the Abstract of Bids reflected that 8 of the 11 bidders acknowledged receipt of the amendment. GAO has held that, where an amendment changes the legal relationship between the parties, nonacknowledgment is a material defect which can not be waived. Accordingly, the protest was denied.