Would an offeror be nonresponsive if he/she failed to acknowledge an amendment to a solicitation on a FAR Part 15 RFP for a contruction requirement utilizing a MACC vehicle? If so, what would be a good FAR reference for rejecting the apparent low offeror?
FAR 15.306(b)(3)(i) discusses ambiguities in a proposal or other concerns such as weaknesses, errors, omissions. This section refers the reader back to FAR 14.407 which gives instructions on how to handle a mistake. Also, the following GAO decisions can be used in making your decision:
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B-404758, April 28, 2011, “In determining whether an amendment is material, we look at the facts of each case. While no precise rule exists as to whether a change required by an amendment is more than negligible, such that the failure to acknowledge the amendment renders the proposal unacceptable, an amendment is material where it imposes legal obligations on the contractor that were not contained in the original solicitation. Consequently, the protester's failure to acknowledge it cannot, as the protester requests, be waived as a minor informality.”
The facts surrounding the question does not state whether the offerors proposal provided any other indication that the amendment was received and considered in preparation of the proposal, which could affect the outcome of a Protest. B-186511 July 28, 1976 found that, “Although the awardee did not acknowledge the amendment in the usual manner, acknowledgement of an addendum contained in the amendment indicated that the awardee was aware of the amendment. Failure to formally acknowledge the amendment may be treated as a minor informality.”
Without the benefit of a review of the solicitation, it is not possible to determine whether the RFP stated that discussions were to be held. The decision to hold or not hold discussions could have an impact on whether or not to reject a proposal for this type of omission. It would be advisable to seek advice from your local legal office before taking this action.