[Protest of Proposed Department of Labor Contract Award for Central Heating Replacement]

B-220436: Feb 4, 1986

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A firm protested a proposed Department of Labor contract award, contending that the agency should reject the proposed awardee's bid for failure to: (1) acknowledge receipt of an amendment which changed both the bid opening date and the scope of work; and (2) include required representations and certifications. GAO has held that: (1) the inclusion of an amended bid opening date in a bid bond constitutes an implied acknowledgment of receipt of a solicitation amendment; (2) acceptance of a bid when an amendment has not been acknowledged would afford the bidder the opportunity to decide after bid opening whether to furnish evidence that it had considered the amendment or remain silent to avoid award; (3) a bidder's failure to acknowledge an amendment may be waived as a minor informality if the bid included an item that indicated that the bidder had received the amendment; and (4) a bidder's use of a new opening date may not, in itself, be sufficient to indicate clearly that the bidder was aware of other aspects of the amendment or committed to performing in accord with its material terms. GAO found that, since the date on the proposed awardee's bid and bid bond might be explained by other than the actual receipt of the amendment, the proposed awardee could not be legally required to provide the additional work and changes that the amendment required at its original bid price. Accordingly, the protest was sustained, and GAO recommended that Labor reject the proposed awardee's bid as nonresponsive and make award to the protester.