United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Infoshred LLC 

File: B-407086

Date: October 26, 2012

James H. Howard, Esq., Phelon, FitzGerald & Wood, P.C., for the protester.

Jeanne S. Morris, Esq., Department of Veterans Affairs, for the agency.

Cherie J. Owen, Esq., Glenn G. Wolcott, Esq., and Sharon L. Larkin, Esq., Office of 

the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest is sustained where agency rejected awardee’s quote for failure to 

acknowledge an amendment that was immaterial and did not impose any legal 

obligations on the contractor in addition to those to which it had already agreed.

DECISION

Infoshred LLC, of East Windsor, Connecticut, protests the Department of Veterans 

Affairs (VA) decision to reject its quotation for failure to acknowledge a solicitation 

amendment under request for quotations (RFQ) No. VA-241-12-Q-0541, awarded to 

Shred-it USA, Inc., of Rockville, Maryland for shredding services at VA facilities in 

Connecticut. Infoshred contends that the amendment was immaterial and a failure 

to acknowledge it could not provide the basis for rejection of the firm’s proposal. 

We sustain the protest.

The RFQ, issued on April 19, 2012 via the General Services Administration (GSA)

e-Buy system to vendors holding GSA Federal Supply Schedule (FSS) contracts,

contemplates the establishment of a five-year blanket purchase agreement (BPA), 

under which yearly fixed-price task orders for shredding services will be issued.

On April 26, the VA issued an amended solicitation (Amendment 1) that contained an 

updated statement of work and a list of questions and answers. As relevant here, 

Amendment 1 contained the following question and answer:

The solicitation says on-site shredding services. Is on-site or off-site 

shredding required? 
Page 2 B-407086 

Both on-site and off-site shredding is applicable. BPA VA241-12-Q-0541 

is modified and included in this amendment to address where both 

on-site and off-site shredding is required. [The VA] does not want the 

contractor sitting at the loading dock, for hours, shredding paper. The 

containers should be picked up and taken to an off-site location for 

shredding in accordance to meeting the required security stipulations.

Revised BPA VA2421-12-Q-0541 is included as an attachment replacing 

the original BPA VA241-12-Q-0541 attached and published on 4/19/12.

RFQ amend. 1 at 55.

On May 1, the agency again amended the solicitation, providing additional 

information about the requirement that shredding occur off-site (Amendment 2). 

Amendment 2 contained additional questions and answers and again included a 

revised statement of work. As relevant here, the questions and answers in 

Amendment 2 provided:

Is this RFQ for on-site or off-site shredding? 

Contractor is required to perform off-site and on-site shredding. The 

primary contract parameters involve 99% off-site shredding. However, 

on occasion, on-site shredding, estimated at 1% (approx. 920 lbs) of 

the contractor performance may be required, depending on the nature 

of the documents being shredded. On-site shredding services will be 

done within the scope of the current pick-up schedule, as required.

If it is intended to be off-site would you allow on-site proposals? 

Please see response to question 1. 99% of shredding is to be 

conducted off-site. On-site proposals do not meet the requirements of 

the Statement of Work/BPA.

RFQ amend. 2 at 108-09.

Significantly, Amendment 2 contained a revised BPA which included an updated 

performance work statement. In this regard, Amendment 2 stated: 

2nd Revised BPA VA2421-12-Q-0541 is included as an attachment 

replacing the original BPA VA241-12-Q-0541 attached and published 

on 4/19/12 and the revised BPA per the 1st amendment published on 

4/26/12.

Id. at 109 (emphasis added).
Page 3 B-407086 

In the context of another question, Amendment 2 also referenced text in 

Amendment 1, stating that the agency had cited the reason for the requirement of offsite shredding as “time spent on the loading docks shredding materials.” RFQ 

amend. 2 at 108. The solicitation also provided that failure to acknowledge 

solicitation amendments “may result in rejection of your offer.” RFQ amend. 1 at 54; 

RFQ amend. 2 at 107.

Infoshred submitted its quotation by the due date set forth in the solicitation. As 

relevant here, the firm’s quotation committed to the following with regard to off-site 

shredding: 

The VA Med Center’s staff will empty the contents of security 

containers and internal bins into Infoshred supplied collection 

containers. These containers will be brought to a central location. The 

material will be picked up in a secured box truck equipped with 

vehicle tracking and alarm system. The material is returned to 

Infoshred’s secured facility in East Windsor. The material will be 

shredded into 1.5” x 5/8” crosscut particle size, baled and sent to a mill 

to be re-pulped. 

AR, Infoshred Proposal, at 211.

Infoshred’s quotation also included an express acknowledgment of Amendment 2, 

but did not separately acknowledge Amendment 1. AR, Infoshred Proposal, at 244. 

Upon receipt of Infoshred’s quotation, the agency determined that it was 

“non-compliant” for failure to acknowledge the first amendment. Contracting 

Officer’s Statement at 3. Therefore, the quotation was rejected and the contents of 

the quotation were not further evaluated. Id. at 4. This protest followed.

DISCUSSION

Infoshred contends that Amendment 1 is not material because all of the 

requirements imposed by Amendment 1 were encompassed or superseded by 

Amendment 2, which the firm acknowledged. Comments at 2. Infoshred further 

argues that, although it did not acknowledge Amendment 1, the firm’s quotation 

nevertheless committed to comply with the requirements announced in

Amendment 1--specifically, the requirement for off-site shredding. Protest at 4.

Generally, a quotation may be rejected for failure to acknowledge a material 

amendment. 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, an amendment is material where it imposes legal 

obligations on the contractor that were not contained in the original solicitation or 

subsequent amendments acknowledged by the offeror. See MG Mako, Inc., 

B-404758, April 28, 2011, 2011 CPD ¶ 88 at 2; Skyline ULTD, Inc., B-297800.3, Aug. 22, 

2006, 2006 CPD ¶ 128 at 3; Navistar Marine Instrument Corp., B-277143.2, Feb. 13, 
Page 4 B-407086 

1998, 98-1 CPD ¶ 53 at 2. We have also held that an amendment may be 

constructively acknowledged where the proposal includes the material items 

appearing only in the amendment. Kuhana-Spectrum Joint Venture, LLC, B-400803, 

B-400803.2, Jan. 29, 2009, 2009 CPD ¶ 36 at 9-10. Further, where a solicitation states 

that a quotation may be excluded from consideration for failing to meet a 

requirement, as is the case here, offerors are reasonably put on notice that rejection 

will not be automatic but instead will occur only if there is a reasonable basis for 

such action. See Macfadden & Assoc. Inc., B-275502, Feb. 27, 1997, 97-1 CPD ¶ 88 at 

2-3.

When asked by GAO to identify obligations imposed by Amendment 1 that were not 

also imposed by Amendment 2, the agency initially stated that because the protester 

did not acknowledge Amendment 1, “Infoshred is not bound to perform off-site 

shredding.” VA Response to GAO’s Questions, Oct. 1, 2012, at 1. Further, the VA 

characterized Amendment 2 as non-substantive. Id. However, in response to further 

questions from GAO, the VA acknowledged that Amendment 2 contained a revised 

statement of work and also addressed the requirement for off-site shredding. VA 

Response to GAO’s Questions, Oct. 4, 2012.1 As noted above, Amendment 2 stated 

that it was “replacing” Amendment 1’s BPA and statement of work. RFQ amend. 2 

at 109.

Here, we find that in light of Amendment 2, which was acknowledged by Infoshred, 

Amendment 1 was immaterial. Amendment 2 contained each of the substantive 

requirements that were contained in Amendment 1 and included a revised 

performance work statement that superseded the one attached to Amendment 1. 

Although Amendment 1 imposed legal obligations on the contractor that were not 

contained in the original solicitation--that is, the requirement for off-site shredding--

Amendment 2, which Infoshred acknowldeged, also contained these requirements 

and provided even more detail regarding the requirements. Therefore, the agency’s 

rejection of the protester’s quote for failure to acknowledge Amendment 1 was 

unreasonable.

The protest is sustained. 

 1 In its last response to GAO’s questions, the agency argued that the statement in 

Amendment 1 that contractors should not sit at the loading dock for hours shredding 

paper, but should instead take the paper to an off-site location, imposed a different 

requirement than the requirements for off-site shredding set forth in Amendment 2. 

VA Response to GAO’s Questions, Oct. 4, 2012 at 1. We find the agency’s argument 

to be unpersuasive. The requirement that shredding be performed off-site precluded 

the possibility of a contractor performing the shredding on-site at a loading dock. 

While Amendment 1 may have provided offerors with additional insight into the 

agency’s reasons for requiring off-site shredding, it did not impose any legal 

obligations that were not also contained in Amendment 2. 
Page 5 B-407086 

RECOMMENDATION

We recommend that the agency reevaluate quotations, including the one submitted 

by Infoshred, and make a new selection decision. If that decision results in the 

selection of another vendor, we also recommend that the VA terminate for 

convenience the BPA and, if feasible, the task order issued to Shred-it USA. We 

further recommend that the agency reimburse the protester the costs of filing and 

pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) 

(2012). The protester’s certified claim for costs, detailing the time spent and the cost 

incurred, must be submitted to the agency within 60 days after receiving this 

decision.

Lynn H. Gibson

General Counsel