What is a Material Defect In a Bid That Makes it Nonresponsive?

The Federal Acquisition Regulation (“FAR”) states that in a procurement by sealed bidding, “after bids are publicly opened, an award will be made…to that responsible bidder whose bid, conforming to the invitation for bids [“IFB”], will be most advantageous…considering only price and price related factors included in the invitation.” FAR 14.101(e). A bid shall be rejected, as stated in FAR 14.404-2, because it:

• Fails to conform to the essential requirements of the [IFB]

• Fails to conform the specifications;

• Fails to conform to the delivery schedule;

• Imposes conditions that modify the IFB or limits the bidder’s liability;

• Protects against changes in conditions such as increased cost

• States a price but indicates that price “shall be the price in effect at time of delivery.”

• If the contracting officer determines it is unreasonable as to price.

• Is from an person or concern that is suspended, debarred, proposed to debarment

• Fails to furnish a required guarantee

FAR 14.405 further clarifies that a “minor informality or irregularity [variation in a bid] is one that is merely a matter of form and not of substance” and can be corrected or waived without being prejudicial to other bidders.” “The defect or variation is immaterial when the effect on price, quantity, quality or delivery is negligible when contrasted with the total cost or scope” of the procurement. FAR 14.405. Finally, the same FAR section (d) states that an example of a minor informality or irregularity in a bid includes “the failure of a bidder to …[a]knowledge receipt of an amendment to the [IFB], but only if (1) the bid clearly indicates that the bidder received the amendment, or the amendment involves only involves a matter of form or has either no effect or merely a negligible effect on price, quantity, quality or delivery of the item bid upon.[.]” FAR 14.405(d)(1)&(2).

With those principles in mind, consider the Marine Corps (“USMC”) issuance of an IFB for construction of a new steel offloading platform in Michigan. See Morrish-Wallace Const. d/b/a Ryba Marine Const. Co, B-423796.2, Feb. 5, 2026. After issuance, the IFB was amended three numbered times to: (1) update wage determinations; (2) provide an additional update to wage determinations; and (3) include new labor/fringe benefit contributions and to increase the size and weight of the sheet pile cap (a capping structure placed on top of the sheet pile walls (the previous sheet pile cap would not accommodate the dimensional irregularities of the sheet pile walls), which the agency estimated would cost at least $21,000 in extra materials.

The USMC received six bids, and Korneffel was lowest in price, but the agency found its bid nonresponsive because the firm failed to acknowledge amendment no. 3. After bid opening, Korneffel submitted a signed copy of Amendment no. 3, but the USMC responded that the failure to acknowledge the amendment was not a minor irregularity, and Korneffel protested to the Government Accountability Office (“GAO”). While reviewing the protest allegations, the Contracting Officer made a re-determination that the updated wage determination impacted only landscape laborers, which was not applicable to this procurement. The Contracting officer also concluded that the revision to the steep pile cap size would only result in a $21,000 increase in price, which was negligible since this amounted to only 1.1 percent of contract value.

The USMC awarded to Korneffer. The second low bidder, who had acknowledged the third amendment to the IFB, protested to the GAO that the agency could not waive a wage determination, that the change to the sheet pile cap size constituted a material change, and therefore amendment no. 3 had to be acknowledged before bid opening pursuant to FAR 14.405.

The GAO noted that a bidder’s failure to acknowledge a material amendment to an IFB renders the bid nonresponsive since without such acknowledgement, the government’s acceptance would not legally obligate the bidder to meet the requirements identified in the amendment. GAO also recognized that a bidder should be given an opportunity to cure any non-material deficiency or the government should waive the deficiency. So the question was this: was IFB amendment no.3 material or nonmaterial?

First, the GAO considered the changes in the 3rd amendment’s wage determination. GAO held that the change in the wage determination was not applicable to this contract because amendment no. 3 did not increase a wage for a particular trade to be employed on this contract.

However, the GAO agreed with the protester that Korneffel’s failure to acknowledge the revised steel cap size was a material defect because, even though its effect on price was negligible, the amendment was material because it added requirements to contract performance which were not contained in the original IFB. GAO noted that the record showed that the larger channel cap was necessary because “the smaller channel cap has flanges that do not provide enough area to accommodate the dimensional irregularities of the sheet pile walls set to be used… Thus the amended IFB changed the specifications of the product to be delivered” and had to be acknowledged in Koneffel’s bid as opened. A failure to do this would have meant that Korneffel would not be bound to perform in accordance with the specifications.

GAO held that the USMC should have rejected Korneffel’s bid, and should correct its improper action by terminating the contract for the government’s convenience and make a new award to the protester, provided it was otherwise determined to be eligible for award.

Takeaway. If a solicitation amendment is material, it must be acknowledged by the offeror in order to be responsive in a sealed bid procurement. In negotiated procurements as well, failure to acknowledge a solicitation amendment runs the risk that the offeror may not be in compliance with the solicitation’s specifications or other requirements, so acknowledgement is essential (especially where an agency chooses to award without any discussions). An offeror’s failure to acknowledge a solicitation amendment in its initial submission could easily be cured in a response to discussions.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes