Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: DBI Waste Systems, Inc. 

File: B-400687; B-400687.2 

Date: January 12, 2009 

John M. Curran, Esq., and Michael S. Robertson, Esq., Corwin & Corwin LLP, for the 

protester. 

Edward B. Carney, Department of Veterans Affairs, for the agency. 

Frank Maguire, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

1. Protest that agency’s publishing of notice of solicitation on government-wide 

point of entry was inadequate because protester lacks internet access is denied; 

potential offerors are on constructive notice of solicitation notice published on GPE. 

2. Protest that awardee’s proposal was ineligible for award because it did not 

acknowledge solicitation amendment is denied where record establishes that 

amendment was immaterial; failure to acknowledge immaterial amendment was 

properly waived by agency. 

DECISION 

DBI Waste Systems, Inc. (DBI), of Everett, Massachusetts, protests the award of a 

contract to Waste Management, Inc. (WMI) under request for proposals (RFP) 

No. VA-241-08-0589, issued by the Department of Veterans Affairs (VA) for refuse 

removal services at Boston-area VA medical facilities. DBI contends that the agency 

failed to provide adequate notice of the RFP and failed to acknowledge a material 

amendment to the RFP. 

We deny the protest. 

The solicitation, which was for refuse removal at three Boston-area VA facilities, 

including VA’s Jamaica Plain campus, Brockton campus, and West Roxbury campus, 

was issued on Tuesday, September 23, 2008, and publicized on the government-wide 

point of entry (GPE), FedBizOpps, at approximately 3 p.m. on that day. AR, exh. 1, 

Contracting Officer’s Statement (COS), at 2. Proposals were due by 10 a.m., Monday, 
September 29. AR exh. 6. On Friday, September 26, VA amended the solicitation, 

changing the requirement for a 4 cubic yard compactor under contract line item

(CLIN) 09 (Brockton campus), to one for a 4 cubic yard container. AR exh. 4. Three 

proposals were received. AR exh. 5. Although DBI was the incumbent for the 

Jamaica Plain campus, it did not submit a proposal. A contract was awarded to WMI

for all three sites. Id. 

SOLICITATION NOTICE 

DBI asserts that the agency should have provided it with individual notice of the 

RFP, in addition to the notice on FedBizOpps, based on its status as an incumbent

and the agency’s course of dealing with it in this and in prior acquisitions in which 

DBI asserts it was orally notified of the solicitation. 

This argument is without merit. FedBizOpps has been designated as the GPE, “the 

single point where Government business opportunities greater than $25,000, 

including synopses of proposed contract actions, solicitations, and associated 

information, can be accessed electronically by the public.” Federal Acquisition 

Regulation (FAR) § 2.101. Protesters are charged with constructive notice of the 

contents of procurement actions published on the GPE. Herndon & Thompson, 

B-240748, Oct. 24, 1990, 90-2 CPD ¶ 327 at 3. The doctrine of constructive knowledge 

imputes knowledge to a party without regard to the party’s actual knowledge of the 

matter at issue. WorldWide Language Resources, Inc.; SOS Int’l Ltd., B-296984 et al., 

Nov. 14, 2005, 2005 CPD ¶ 206 at 9. Accordingly, the notice of the RFP published on

FedBizOpps was legally sufficient, and the fact that DBI may not have had actual 

knowledge of the RFP is not determinative here. See, e.g., Specialty Marine, Inc., 

B-292053, May 19, 2003, 2003 CPD ¶ 106 at 2 (prospective contractor on constructive 

notice of the contents of procurement announcement even when it did not see the 

announcement). 

DBI’s status as an incumbent contractor did not operate to impose some greater 

notice obligation on the agency. At one time--but no longer--the FAR required that 

“bids shall be solicited from . . . the previously successful bidder” or offeror for the 

requirement. See (superseded) FAR §§ 14.205-4 and 15.403. However, the current 

FAR does not require such notice to incumbent contractors; thus, VA’s failure to

provide actual notice to DBI provides no valid basis for protest. See PR Newswire 

Ass’n, LLC, B-400430, Sept. 26, 2008, 2008 CPD ¶ 178 at 2 n.1. Nor did the agency’s 

prior practice of providing oral notice require the agency to provide DBI with actual 

notice of the RFP here. Shirlington Limousine & Transp., Inc., B-299241.2, Mar. 30, 

2007, 2007 CPD ¶ 68 at 3. 

DBI asserts that, on several occasions, its president met with two VA employees, 

who “indicated that they were not sure exactly what was happening,” but that “VA 

would let [DBI] know the particulars of the bid once the details were put in place.” 

Comments at 3. However, even as recalled by the protester’s president, these vague 

assurances did not include any specific promise to provide a solicitation other than 

Page 2 B-400687; B-400687.2 
through legally required means, i.e., FedBizOpps, and, further, the agency advises 

that the employees in question worked in the agency’s Environmental Management 

Service, not the contracting office. ASR exh. 1. We conclude that these 

conversations did not establish a commitment on the agency’s part to provide DBI 

with actual notice of the RFP. 

FAILURE TO PUBLICIZE FOR 30 DAYS 

DBI asserts that the agency improperly failed to publicize the solicitation for 30 days, 

as it claims is required under the FAR. Under our Bid Protest Regulations, protests

of alleged RFP improprieties must be filed no later than the closing time for initial 

proposals. 4 C.F.R. § 21.2(a)(1) (2008). Here, the RFP as published on FedBizOpps

specifically provided that proposals were due by September 29. Thus, any argument

that this due date was inconsistent with the 30-day requirement had to be raised 

prior to that date. DBI’s protest was not filed in our Office until after award; 

accordingly, it is untimely and will not be considered. We point out that, while, as 

already discussed, DBI allegedly did not view the RFP prior to the closing time, this 

fact has no bearing on our conclusion; again, DBI was on constructive notice of the 

RFP and its contents by virtue of its posting on FedBizOpps. 

AWARDEE’S FAILURE TO ACKNOWLEDGE AMENDMENT 

As indicated above, on September 26, VA amended CLIN 09 of the RFP, changing the 

phrase “4 CU YD compactor” to “4 CY CONTAINER.” AR exh. 2 at 1. DBI maintains 

that the record shows that WMI did not acknowledge the amendment, that its offer 

thus should have been rejected, and that the requirement should be resolicited.1

 VA 

advises that the contracting officer determined that the amendment was not 

material, and therefore waived the failure to acknowledge the amendment as a 

“minor informality.” Id. The protester does not agree that the amendment was 

immaterial. 

We find the waiver unobjectionable. 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 

failure to acknowledge the amendment renders the proposal unacceptable, an 

amendment is material where it imposes legal obligations on a party that are 

different from those contained in the original solicitation, or if it would have more 

than a negligible impact on price, quantity, quality, or delivery. See Skyline ULTD, 

Inc., B-297800.3, Aug. 22, 2006, 2006 CPD ¶ 128 at 3. The mere fact that requirements 

have been changed by an amendment, however, does not render the amendment 

material. Doty Bros. Equip. Co., B-274634, Dec. 19, 1996, 96-2 CPD ¶ 234 at 3-5. 

 1

 The agency advises that none of the offerors acknowledged the amendment. ASR 

exh. 1. 

Page 3 B-400687; B-400687.2 
DBI asserts that the amendment was material because “a compactor, including its 

wiring and installation, is far more expensive than a mere container.” Comments

at 12. However, it appears from the record that there is no effective price difference 

between the two items. VA reports that all of the offerors submitted the same price 

for the compactor and the container CLINs, ASR exh. 1, and also has furnished an

invoice indicating that DBI charges an identical rate for compactors and containers 

under its current contract. ASR exh. 3. We also note that the unacknowledged 

amendment related to only 1 of 35 CLINs. These considerations indicate that the 

change was not significant, and DBI has presented no evidence showing otherwise. 

Under these circumstances, we conclude that the amendment was not material and 

that the agency properly waived WMI’s failure to acknowledge it. See, e.g., Lumus

Constr., Inc., B-287480, June 25, 2001, 2001 CPD ¶108 at 3 (even where amendment 

arguably introduced new obligations in solicitation, any price difference attributable 

to amendment was negligible and amendment was not material); Microform, Inc.; 

Gov’t Printing Office--Recon., B-231411.2, B-231411.3, Dec. 13, 1988, 88-2 CPD ¶ 587 

at 2 (amendment decreasing estimated quantity not material where no evidence that 

change would have had more than trivial effect on prices). 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

Page 4 B-400687; B-400687.2