_____________________________________ 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