[Protest of Army Corps of Engineers Rejection of Bid for Tow Haulage Units]

B-221825: Feb 24, 1986

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A firm protested the Army Corps of Engineers' rejection of its bid as nonresponsive because it failed to acknowledge a solicitation amendment. GAO noted that: (1) subsequent to the issuance of the solicitation, the supplier for the protester and another bidder advised the Corps that certain technical specifications were inadequately stated and should be modified; (2) in response to this advice, the Corps issued an amendment which revised certain technical specifications and extended the effective period during which the government could issue additional delivery orders; and (3) since the amendment was considered material and the protester failed to acknowledge it, the Corps rejected the protester's bid as nonresponsive. GAO found that: (1) an amendment is material if it has more than a trivial effect on price, quantity, quality, or delivery of the items; (2) failure to acknowledge a material amendment renders a bid nonresponsive because acceptance of the bid would not legally obligate a bidder to meet the government's needs; (3) a bidder bears the risk of nonreceipt of solicitation amendments absent evidence of a deliberate attempt to exclude it from competition; (4) although the protester alleged that its nonreceipt never received a copy of the amendment, it did not allege that it was the result of the Corps' bad faith; and (5) the protester's failure to acknowledge the solicitation amendment resulted in a potential unfair advantage over competitors and a fatal defect in its bid which could not be waived. Accordingly, the protest was denied.

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