Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, April 11, 2014, 2:29pm EST
Hamilton Pacific Chamberlain, LLC, B-409208.2, April 3, 2014
Several recent articles have discussed relatively minor issues that cost a contractor an opportunity for an award. We’ve seen an offeror fail to respond to a solicitation amendment, an offeror fail to confirm its emailed submission was actually received by the agency, and an offeror fail to include 3 of the required 3,000+ labor rates in its proposal. In each of those situations, the offeror’s proposal-related failure prevented the offending offeror from receiving further consideration for award. We’re going to switch gears this week, and discuss a case where an offeror’s omission of a bid price on its proposal did not disqualify it from receiving an award.
Hamilton Pacific Chamberlain, LLC is actually a story of two separate protests of a procurement conducted by the Dept. of Veterans Affairs (VA). The VA issued an invitation for bids (IFB) for construction services at the VA Medical Center in Martinsburg, WV. Several amendments to the IFB were issued. One such amendment established two bid line items. The first line item was the base bid line item for the required renovations to the building. The second line item was expressly labeled as an “alternate” item, which removed a wheelchair lift from the requirement of the base line item.
The low bidder submitted a bid price for the base line item, but did not submit a bid for the alternate line item. The VA initially determined that the low bidder’s failure to submit a price for the alternate line item disqualified it from award, and thus the VA announced an award to Hamilton Pacific Chamberlain (HPC). However, the low bidder filed a bid protest with GAO challenging its rejection. The low bidder argued that because the alternate line item was a deduction from the base bid price, the agency could award either the full project or the project minus the wheelchair lift at the same price. The low bidder’s bid price was low either way, thus it argued it should have been selected for award.
The VA ultimately agreed with the low bidder, and took corrective action rescinding its rejection of the low bid. As a result of the corrective action, the VA announced that award would be made to the low bidder. HPC filed this protest with GAO, in essence arguing that the VA was correct in its initial determination that the low bid should be rejected for failing to include bid prices for both line items.
The VA countered HPC’s protest by arguing that failing to bid on the alternate line item did not render the low bid unresponsive, because the VA ultimately did not make an award on the alternate line item. GAO agreed with the VA, and denied HPC’s protest.
GAO stated that agencies must evaluate bids based on the work actually awarded. Basically this means that bidders do not always have to submit bid prices on every alternate line item in a solicitation to be considered for award. This is true even where a solicitation explicitly warns offerors that failing to bid on all items will cause rejection of a bid. A bid that does not submit a bid price on an alternate line item is only nonresponsive if the procuring agency’s evaluation and award includes the alternate item that was not bid.
Practically speaking, this decision introduces an interesting option for contractors when submitting bids on solicitations with varying alternate line items. If a solicitation contains an alternate line item that for one reason or another makes the project less desirable, the contractor could theoretically omit a bid price for the undesirable alternate item and remain responsive to the line items it was actually pursuing. This case makes it clear that as long as it submits a bid price on the line item actually awarded, the agency has to consider it for award.