_____________________________________
 
                        DENIED:  January 4, 1999
                 _____________________________________
 
                             GSBCA 11988-P,
 
                    IRVIN TECHNOLOGIES INCORPORATED,
 
                                           Protester,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                           Respondent.
 
        Frank   Irvin,   II,   President   of   Irvin   Technologies
   Incorporated, appearing for Protester.
 
        COL Riggs  L. Wilks,  Jr., MAJ Charles  R. Marvin,  Jr., and
   CAPT  Sophia  Rafatjah,  Office  of  the  Chief  Trial  Attorney,
   Department of the Army, Arlington, VA, counsel for Respondent.
 
   Before Board  Judges LaBELLA,  Acting Chief  Judge, BORWICK,  and
   PARKER.
 
   BORWICK, Board Judge.
 
                               Background
 
        On   August  28,   1992,   protester,  Irvin   Technologies,
   Incorporated,  filed  a   protest  at  this  Board   against  the
   Department of the  Army, respondent.  Protester  maintained here,
   after a  denial  of  its  agency protest,  that  the  contracting
   officer illegally awarded a contract for off-the-shelf commercial
   software  to General Technology Incorporated.  Protester alleged,
   as  it had  in the  agency protest,  that General  Technology had
   failed  to  acknowledge  amendment  0004 to  the  IFB,  that such
   failure represented more than a minor irregularity, and that  the
   contracting  officer could  not, relying  on Federal  Acquisition
   Regulation (FAR), 48  CFR 14.405 (d) (1991),  waive the purported
   deficiency  in General Technology's bid.  Amendment 0004 inserted
   a   ten   percent  pricing   evaluation   preference  for   small
   disadvantaged businesses.  
 
         As  the protest  was  filed  at this  Board  more than  ten
   calendar days  after contract  award, respondent's  delegation of
   procurement authority was not suspended.  
 
        Respondent  filed  a  motion  to  dismiss  for  lack  of  an
   interested party.  We  treat the motion as  a motion for  summary
   relief based  on  the  papers  submitted and  the  protest  file.
   Protester  has  replied  to  respondent's  motion.      We  grant
   respondent's motion, sustain the contracting officer's actions in
   awarding the  contract and denying  the agency protest.   General
   Technology submitted its bid before receipt of the amendment.  It
   acknowledged the amendment  by separate letter  prior to the  due
   date for receipt  of bids.   We find  no irregularity in  General
   Technology's  bid that the  contracting officer had  to consider.
   General  Technology  followed  the  directions  of  the  IFB  for
   acknowledgement of amendments, specifically  the direction of FAR
   clause 52.215-0008, incorporated  by reference in the  IFB, which
   required   bidders   to  ensure   the  Government's   receipt  of
   acknowledgement  of amendments "by the time specified for receipt
   of offers."
 
                            Findings of Fact
 
        The parties do  not dispute the facts  set forth below.   On
   March 3, 1992, respondent issued Invitation for Bid (IFB) DADF11-
   92-B-0005 for  supply of  a variety  of commercial  off-the-shelf
   software such as  Multimate ADV II and 4.0,  Lotus 1-2-3 versions
   2.2 and  3.1, DBASE III+  and DBASE IV, Harvard  Graphics version
   3.0, Wordperfect,  and others  for personal  computers.   Protest
   File, Exhibit 1.  
 
        In  early June, respondent issued amendment 0004 which added
   Defense Federal Acquisition Regulation  Supplement (DFARS) clause
   252.0219-7006 to the  IFB.  Protest File, Exhibit 7.   The clause
   provided in pertinent part:
 
        (b) Evaluation preference
 
        (1) Offers will be evaluated  by adding a factor of ten
        percent to the price of all offers, except-
 
        (ii) Offers from small disadvantaged business concerns,
        which have not waived the preference[.]
 
   Id.  The amendment also extended the bid opening date to June 19,
   and  cautioned  vendors  "you must  acknowledge  receipt  of this
   amendment   when  you  submit  your  bid."    Alternatively,  the
   amendment stated "if you  wish to change  your bid at this  time,
   you may do so, you may submit a new bid and mark it revised bid."
   Id.
 
        The  IFB incorporated  by reference FAR  Clause 52.215-0008,
   which  requires that vendors acknowledge receipt of any amendment
   with  the Government receiving  the acknowledgement "by  the time
   specified for  receipt of  offers."  Protest  File, Exhibit  1,  
   L.3; 48 CFR  52.215-8 (1991).  Contract  award was to be  made to
   the single  responsive, responsible bidder  proposing the  lowest
   aggregate price  for all  service and  supplies.   Protest  File,
   Exhibit 1,   M.3.   Irvin Technologies submitted an aggregate bid
   for  the  awarded contract  line items  of $441,499.50.   Protest
   File, Exhibit  10.   On June 4,  General Technology  submitted an
   aggregate bid for the awarded contract line items of $400,073.30.
   Protest File, Exhibits 8, 9.  On June 8, 1992, General Technology
   acknowledged  receipt of amendment  0004, explaining that  it had
   received the  amendment  after submission  of its  bid.   General
   Technology did not revise its bid.  Protest File, Exhibit 10.  
 
 
        On July 16, 1992, respondent awarded the contract to General
   Technology  as the low,  responsible responsive bidder.   Protest
   File,  Exhibit 12.    On  August 14,  protester  filed an  agency
   protest alleging  that "amendment  0004 was  not acknowledged  by
   General Technology Inc.  and . . . the bid  of General Technology
   is non-responsive and should not have been considered for award."
   Protester requested  award  to it  "based on  the 10%  evaluation
   preference."   Protest  File,  Exhibit  13.   On  August 14,  the
   contracting  officer  denied  the  protest,  because  the alleged
   failure to acknowledge  amendment 0004 was considered  to have "a
   negligible effect on price, quantity, quality  or delivery of the
   items  bid  upon  in  accordance  with  FAR  14.405(d)(2)."   The
   contracting  officer's  alternative  ground  for  denial  of  the
   protest was  that protester was  not entitled to the  ten percent
   small business preference because protester's bid, as the bids of
   all  competing vendors, offered items manufactured or produced by
   large  businesses.    Thus,  even  if  amendment  0004  had  been
   determined material,  protester would not  have been in  line for
   award.   Protest  File, Exhibit  14.  The  protest at  this Board
   followed.
 
                               Discussion
 
        Protester  alleges that  General Technology's  bid was  non-
   responsive  for failure to  acknowledge amendment 0004,  and that
   the contracting officer could not "waive the deficiency," relying
   on 48 CFR 14.405(d)(2)  (1991).  General Technology submitted  an
   early  bid--on June  4.   There  was no  irregularity in  General
   Technology's  bid.   It  would have  been impossible  for General
   Technology to acknowledge the amendment with its bid  because the
   amendment  was received  four days  after  bid submission.   When
   General  Technology  received  amendment  0004,  it  acknowledged
   receipt of  the amendment by  separate letter to  the contracting
   officer  well before the last date  for receipt of bids.  General
   Technology acted exactly as prescribed by FAR Clause 52.215-0008,
   which  requires vendors  to ensure  the  Government's receipt  of
   acknowledgements "by the time specified  for receipt of offers." 
   We thus sustain  the decision of the contracting  officer in both
   awarding  the  contract  to General  Technology  and  denying the
   agency  protest.   In  light  of  our  disposition, we  need  not
   consider the  contracting officer's alternative ground for denial
   of the agency protest.
 
                                Decision
 
        Respondent's  motion for  summary relief  is  granted.   The
   protest is DENIED.
 
                                   _________________________
                                   ANTHONY S. BORWICK
                                   Board Judge
 
 
 
   We concur:
 
 
   _________________________               _________________________
   VINCENT A. LaBELLA                      ROBERT W. PARKER
   Acting Chief Judge                      Board Judge