Protest of Bid Rejection as Nonresponsive

B-194679: Nov 8, 1979

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An elevator company protested the rejection of its low bid as nonresponsive and contended that the awardee could not comply with the solicitation's definitive responsibility criterion. The invitation for bids (IFB) was for the award of a full maintenance contract for elevators in Federal buildings and contained an erroneous statement as to the capacity of five elevators. An amendment to the IFB was issued to correct the error. However, the protester did not acknowledge the amendment and consequently the agency rejected its bid as nonresponsive. The protester asserted that its failure to acknowledge the amendment should be waived because its bid was based on a prebid inspection of the elevators to be serviced. GAO has held that for a bid to be effective, an acknowledgment of an amendment must be submitted prior to bid opening. Thus, even though the protester inspected the elevators before bidding and was aware of their actual capacity, it would still have to acknowledge a material amendment pertaining to those elevators. In addition to affecting the price, the amendment appeared to have a material effect on the quality of the work required. The bid was determined to be properly rejected. The protester further argued that the amendment was defective because it did not advise bidders that a failure to acknowledge it might result in a bid rejection. GAO disagreed because the amendment did state that the bidder must acknowledge the amendment. The record showed that the protester's failure to acknowledge the amendment was the result of the oversight of one of its employees who failed to bring the amendment to the attention of company officials. As to the allegation that the awardee could not meet the responsibility criterion of the IFB, GAO construed the solicitation requirement that the bidder certify that it had serviced elevator equipment of this type as not requiring service experience on identical elevators. The awardee provided the agency with a list of locations where it had serviced elevators of the type specified in the IFB and the agency determined that they complied with the IFB requirements. Therefore, the protest was denied.