We are excited to introduce the Bid Protest Beat, a new series where our government contracts attorneys will discuss key takeaways from recent bid protest decisions. Our first edition covers a recent decision from GAO that underscores the importance of acknowledging solicitation amendments when required to do so by the solicitation.
Morrish-Wallace Construction d/b/a Ryba Marine Construction Co., B-423796.2 (Feb 05, 2026)
The US Army Corps of Engineers (Corps) issued an invitation for bids (IFB) for the construction of a new steel pile offloading platform in Michigan for a marine operations transfer site, for the award of a single fixed-price contract to the lowest-priced responsive and responsible bidder. The IFB required all bidders to acknowledge receipt of any solicitation amendment, and warned that failure to comply with solicitation instructions could make them ineligible for award.
The Corps issued three amendments to the IFB before it opened for bidding. The third amendment (Amendment 3), which is central to the protest, included an updated wage determination and revised plan sheets.
Six bidders submitted in response to the IFB, including Moorish-Wallace Construction Co. d/b/a Ryba Construction Co. (Ryba) and E.C. Korneffel Co. (Korneffel). Korneffel submitted the lowest-priced bid, but had failed to acknowledge Amendment 3. Initially, the Corps awarded the contract to Ryba, which had submitted the second-lowest bid.
Korneffel filed a protest with the US Government Accountability Office (GAO), arguing that Amendment 3 wasn’t material, and so the Corps should have waived the defect or allowed Korneffel to cure the deficiency rather than rejecting its bid. While Korneffel’s protest was pending before GAO, the Corps revised its determination, concluded Amendment 3 wasn’t material, and took corrective action to award to Korneffel as the lowest-priced offeror. Specifically, the Corps ultimately determined that Korneffel’s failure to acknowledge Amendment 3 should not exclude it because the updated wage rate only impacted fringe benefits for landscape laborers (which were not part of Korneffel’s bid), and the cost of the revised plan sheet was minor, as it equaled less than 2% of the total bid.
When the Corps notified Ryba that Korneffel was awarded the contract, Ryba filed a protest with GAO on the grounds that the Corps unreasonably determined that Korneffel’s failure to acknowledge Amendment 3 was a minor informality, arguing that the Corps had no authority to waive a wage determination and that the changes to the plan sheets were a material change to the scope of the contract that could not be waived.
Ryba’s first argument was denied by GAO, which held that “[a]n amendment increasing a wage rate mandated by the David-Bacon Act for a certain trade is material only where there exists a reasonable possibility that the trade’s services will be required in the performance of the contract.” Because the revised wage determination in Amendment 3 increased wages for landscape laborers, and no landscape laborers were included in Korneffel’s bid, GAO concluded that the Corps could waive the acknowledgement requirement as it relates to the updated wage determination.
However, GAO agreed with Ryba’s argument that Korneffel’s failure to acknowledge the revised plan sheets in Amendment 3 was a material defect to its bid. Although GAO found that the revised requirements would have only had a negligible effect on Korneffel’s price, GAO concluded that the amendment was material because it changes specifications of the product to be delivered.
GAO sustained the protest and recommended that the contract previously awarded to Korneffel be terminated for convenience and awarded to Ryba as the second-lowest bidder.
What Can Government Contractors Learn From This?
GAO’s decision in this protest shows that whether a solicitation amendment is considered material is about much more than its impact on the final price. Despite both the Corps and Korneffel arguing that the revisions in Amendment 3 would not truly impact cost or performance, GAO determined that Korneffel’s bid was nonresponsive because it did not legally obligate Korneffel to provide the correct product. Offerors should always review all solicitation amendments and acknowledge them when required to do so by the solicitation, no matter how insignificant they may seem to be. Here, had Korneffel simply acknowledged Amendment 3, it would have received the contract award.
Have questions about how to help your govcon business navigate the bid protest process? Contact Stephanie Wilson at swilson@berenzweiglaw.com.