Protest of Bid Rejection

A firm protested the rejection of its bid for food services because of its failure to acknowledge an amendment to an invitation for bids (IFB) prior to bid opening. The amendment contained specification changes which affected price and also substituted a new Service Contract Act wage rate determination. The protester conceded that it did not acknowledge the amendment in writing prior to bid opening. However, it contended that the agency should have waived the failure to acknowledge the modification because, prior to bid opening, it had acknowledged the amendment by telephone. In addition, the protester stated that it sent its written acknowledgment by certified mail 3 days prior to bid opening because it only received the amendment 3 days before bid opening and, thus, it complied with the provision to the best of its ability. Amendments modifying or increasing Service Contract Act minimum wage requirements are material amendments because bidders are not obligated to pay the higher rates unless they acknowledge the amendments. Therefore, the failure to acknowledge such an amendment renders a bid nonresponsive and cannot be waived as a minor informality. In prior decisions, GAO has rejected the argument that a material IFB amendment may be orally acknowledged. To the extent that the protest filed after bid opening alleged inadequate time to acknowledge the amendment, it was untimely under bid protest procedures and not for consideration on the merits. The initial protest to the agency was also untimely as it was filed after bid opening. Accordingly, the protest was denied in part and dismissed in part.