Agency: Department of Energy
Disposition: Protest Sustained
Decided: September 4, 2018
Keywords: Buy American Act
General Counsel P.C. Highlight: Omitting certain information that does not impact price or an enable the bidder to change the bid price does not render a bid “nonresponsive” for bid submission purposes.
Summary of Facts
A small business set aside solicitation was issued April 5, 2018 for a contractor to construct and complete a 345-kV capacitor bank at the Liberty Substation. The solicitation was a fixed price contract to the lowest priced bidder who also conformed to the requirements of the solicitation. The work included purchasing and installing three 345-kV disconnecting switches and other equipment. The solicitation incorporated the Federal Acquisition Regulation (FAR) clause 52.225-9 Buy American – Construction Materials, and FAR 52.225-10, the Notice to Buy American Requirement – Construction Materials. The Buy American Act essentially requires the use of domestic construction materials unless an exception, such as the unreasonable cost of domestic construction materials, applies. Where no exception applies, the FAR requires agencies to find the bid nonresponsive if the use of foreign construction materials is proposed.
The agency received 10 bids. These bids were opened May 22. The first bid was rejected as non-responsive. Addison’s bid, the second lowest priced bid, was also rejected as nonresponsive, as it did not include the information necessary to establish the use of foreign materials as required. Thus, the contract was awarded to the third lowest bidder. Addison filed a protest.
Basis of Protest
Addison protests the “nonresponsive” assessment by the agency. The FAR requires that when a contractor seeks an exception to the Buy American Act on the basis of unreasonable costs, it must include with its bid:
- Unit of measure
- A description of the foreign and domestic materials at issue
- A detailed justification for the use of foreign construction materials
- A reasonable survey of the market
- A completed price comparison table
- The time of delivery or availability of the materials
- Location of the project
- Specific supplier information including name, address, and telephone number,
- A copy of the supplier’s response or a summary of same and
- Other applicable supporting information.
Instead, Addison’s bid included:
- A chart detailing the foreign construction material
- The corresponding domestic material
- Description of the material
- Unit of measure
- Unit price
- Total cost and
- Country or state of origin.
Absent from Addison’s submission were the name, address, phone numbers, and contact information for the suppliers surveyed, their responses, and any other supporting information.
The agency took the position that the bid was required to include every piece of listed information and absent the missing information, it was not in a position to adequately determine whether the exception to the Buy American Act applied. Consequently, it determined the bid was nonresponsive.
The GAO disagreed that the FAR requires every piece of information be included. The purpose of the FAR requiring detail such as the amount of foreign material to be used, and the price of such materials, is that this eliminates the opportunity for bidders to manipulate price after the bids are opened. However, the GAO notes, a bid “should not be rejected as nonresponsive simply because it does not include all the information needed to determine whether a Buy American Act exception applies, however, where the missing information can be obtained by the agency through its own investigation and would not affect the relative standing of the bidder.”
In this case, the GAO found the information in the bid was responsive, as there was sufficient information available to the agency to conclude the Buy American Act exception applied, including the fact foreign material was being used, and the amount and cost of such material.