Preparing and submitting a bid for a federal procurement requires strict compliance with the solicitation’s instructions. When a bidder fails to comply with these instructions (such as failing to acknowledge an amendment to the solicitation), the bidder may be surprised by the agency’s seemingly harsh decision to eliminate the bidder from award. But if the agency ignores the error and proceeds to award the contract to the bidder, the agency’s decision risks protest of the award from other bidders.
In Morrish-Wallace Constr. d/b/a Ryba Marine Constr. Co., B-423796.2 (Feb. 5, 2026), GAO examined whether an awardee’s failure to acknowledge an amendment to the RFQ constituted a minor informality that could be waived.
What is a Minor Informality?
Under the Federal Acquisition Regulations (FAR), a minor informality or irregularity in a bid “is one that is merely a matter of form and not of substance.” FAR 14.405. This could be an immaterial defect in a bid or a variation from the exact requirements of the procurement “that can be corrected or waived without being prejudicial to other bidders.” Id. This concept generally only applies under FAR Part 14 sealed bids, not under other types of solicitations such as FAR Part 15.
The defect is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the supplies or services being acquired. Id. When the defect is deemed immaterial, the contracting officer will either give the bidder the opportunity to cure the deficiency or waive the deficiency.
Failure to Acknowledge an Amendment
GAO has held that “[a] bidder’s failure to acknowledge a material amendment to an IFB renders the bid nonresponsive, since absent such an acknowledgement the government’s acceptance of the bid would not legally obligate the bidder to meet the government’s needs as identified in the amendment.” Lumus Constr., Inc., B‑287480, June 25, 2001, 2001 CPD ¶ 108 at 2.
But GAO notes, “where a bidder’s failure to acknowledge an amendment is not material, the agency either shall give the bidder an opportunity to cure any deficiency or waive the deficiency, whichever is most advantageous to the agency.” FAR 14.405(d). “An amendment is not material if it would only have a negligible effect on price, quantity, quality, or delivery of item bid upon.” FAR 14.405(d)(2).
This determination is made on a case-by-case basis.
The Case at Issue
The Department of the Army, Corps of Engineers (the Agency) issued an invitation for bids (IFB) for the construction of a steel pile offloading platform. The IFB would be awarded to the lower-priced bidder found responsive and responsible. Bidders were required to submit documentation acknowledging receipt of any amendments that were issued. As part of demonstrating the bidder’s responsiveness, the IFB stated that failure to comply with its instructions would lead to elimination from award. Ultimately, there were three amendments issued under the IFB, meaning that bidders were required to acknowledge receipt of each of the three amendments.
Relevant here is the third amendment. This amendment updated the wage determination to include new labor rates and fringe benefit contribution rates, as well as revised plan sheets, increasing the size and weight of the sheet pile cap. The Agency estimated the revisions to the plan sheets would cost at least $21,000 for added materials.
One of the bidders, E.C. Korneffel Co. (Korneffel or Awardee) failed to acknowledge receipt of the third amendment. As such, Korneffel was found non-responsive and eliminated from further consideration for award. Korneffel filed a GAO protest arguing that the failure was a minor informality that should have been waived. The Agency ultimately agreed, issuing a corrective action and issuing the award to Korneffel.
Following the Agency’s award of the bid to Korneffel, another bidder, Moorish-Wallace Construction Co. d/b/a Ryba Construction Co. (Protester) filed this protest.
Protester argued that the pile sheet revisions in the third amendment constituted a material change in the contractor’s obligations to the Agency. Thus, the Agency unreasonably determined the Awardee’s failure to acknowledge the third amendment was a minor informality.
In response, the Agency claimed that the Awardee’s failure to acknowledge the revision was immaterial because the revision had a negligible effect on price. The steel pile cap revisions would only result in a $21,000 price increase, which only amounted to 1.1% of the total contract value. This, the Agency contended, was a defect the Agency was permitted to cure under FAR 14.405.
GAO’s Analysis
GAO agreed with the Agency’s finding that there was no negligible effect on price. But GAO pointed out, “[p]rice is not the only dispositive factor in determining if an amendment is material. Rather, an amendment is deemed material to an IFB if the amendment adds requirements to contract performance which were not contained in the original IFB.” GAO cited three prior decisions involving a bidder’s failure to acknowledge an amendment:
- Northern Sealcoating & Paving, Inc., B‑299393, Mar. 30, 2007: Agency amended the IFB to change the exterior features of the restroom building, including revising the shingle and concrete color, and added cedar shiplap siding. GAO held that the bidder’s failure to acknowledge the amendment was a material defect, noting that without acknowledging the amendment, the bidder was only obligated to provide a restroom built with the original-colored shingles and concrete, and was not obligated to provide shiplap siding as the original IFB was silent as to the type of siding required.
- Doyon Construction Co., Inc., B‑212940, Feb. 14, 1984: Agency amended the construction of an aircraft hangar, revising the design specifications. Though price was not affected, the amendment had changed the performance requirements. As such, the bidder would not be legally obligated to follow without acknowledging the amendment.
- K Servs., B-238744, June 13, 1990: Agency lowered the number of shrubs to be pruned and added pruning and mulching of flowerbeds. GAO found the failure to acknowledge amendment immaterial because the contractor’s responsibilities already included providing pruning and mulching services. Therefore, the amendment did not increase or otherwise change the contractor’s obligations.
Similar to Doyon and Northern Sealcoating & Paving, the amendment increased both the size and weight of the pile cap, ultimately changing the performance requirements.
Thus, GAO sustained the protest, concluding,
The amended IFB changed the specifications of the product to be delivered, and failure to acknowledge the amendment was not merely a matter of failing to follow the punctilios of the solicitation. Consequently, because the amendment made material changes to the IFB, Korneffel’s bid should have been rejected as nonresponsive since it was otherwise not bound to perform in accordance with the specifications
Conclusion
While the minor informality provision can be useful for bidders under FAR Part 14 procurements to fall back on when an error is made, the ultimate lesson from this decision is to ensure every amendment is acknowledged. While an error may seem trivial to the agency, its fate could still end up in the hands of GAO.
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