Friday, September 7, 2018

Energy Department Improperly Rejected Bid That Did Not Include All Required Information

The Energy Department issued a solicitation back in April for the construction and completion of a capacitor bank at a substation in Arizona. Ten bids were received including one from Addison Construction Company. Addison was the low bidder.

Addison's bid requested an exception to the Buy American Act, on the basis that domestic products were unreasonably priced. It included the cost of foreign manufactured products in its bid. The DOE contracting officer however determined Addison's bid was non-responsive because it didn't include all of the information required by FAR 52.225-9 and 10.

Addison appealed the decision at the GAO (Government Accountability Office).

FAR 52.225-9 requires a contractor requesting an exception to the Buy American Act on the basis of unreasonable costs to include a rather extensive package of supporting information with its bid. Required information includes:

  • price
  • quantity
  • unit of measure
  • description of the foreign and domestic materials at issue
  • detailed justification for the use of foreign construction materials
  • a reasonable survey of the market
  • completed price comparison table
  • time of availability of the materials
  • location of the construction project
  • specific supplier information (including the name, address, and telephone number for the supplier)
  • supplier's response
  • other applicable supporting information
Addison's bid included all of these items except for the name, address, telephone number and contact information for the suppliers that had been surveyed.

DOE argued that Addison's bid was missing information required by FAR and that without that information, DOE could not determine whether a Buy American Act exception applied. Therefore, DOE rejected Addison's bid.

The GAO thought differently. The GAO found that based on the information provided in Addison's bid, the bid was responsive. While the bid did not include all of the information required under FAR, it nonetheless included sufficient information for DOE to understand the foreign material being provided, and the quantity and costs of such material. Thus while the bid was missing some documentation, the omission would not enable Addison to alter the price, or relative standing of its bid.

The GAO whet farther. The GAO stated that there was nothing in the relevant clauses that requires an agency to reject a requested exception simply because the bidder did not provide every piece of information listed. 

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