Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Attention to detail is important to success in many aspects of life, and contractors need to remember that the old maxim applies to them too.
Protesting contractor: Cusack’s Masonry Restoration Inc., Hubbardston, Mich.
Contracting agency: Department of the Army, Corps of Engineers.
Protest issue: Whether the low bidder should have been awarded a contract even though it didn’t comply with all the details in the bid solicitation.
Decision: Denied by the Government Accountability Office, Nov. 29, 2012.
Postmortem: When I was growing up, my father would repeatedly tell me, usually in response to a lame excuse for a low grade, “the devil is in the details.” Then, when I joined the Army at 18, my father was replaced with drill sergeants who would tell me, usually while I was doing pushups for doing something stupid, that I needed “attention to detail” to make it as a soldier. Cusack would have benefited from heeding this advice before submitting its bid.
The Army issued on Aug. 1, 2012, an invitation for bid (IFB), which provided for delivery of construction services at the Sault Ste. Marie, Mich., facility.
In Block 11 of standard form 1442 was the requirement that the contractor begin performance within 10calendar days after receiving notice to proceed. It incorporated Federal Acquisition Regulation clause 52.211-10 Alt.
FAR clause 52.211-10 Alt. 1 incorporated in Block 11 reads: “The Contractor shall be required to (a) commence work under this contract within 10 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than 31 August 2013.”
Bids were initially going to be opened on Aug. 31, 2012, but an amendment to the IFB extended the bid opening date and hence the date that the work would commence. In Block 11, in response to the number of days it would take to complete the work, Cusack wrote the number “350.”
Had the work commenced when originally expected, 350 days would have been sufficient to complete the work before Aug. 31, 2013, as required by the IFB. However, because the amendment reduced the time available to work, 350 days put completion after Aug. 31. As a result, Cusack, which had submitted the lowest bid, was found to be nonresponsive, and its bid was excluded from consideration.
Cusack tried unsuccessfully to convince the Government Accountability Office that it had proposed to do the work even faster than required or in the alternative that the IFB was ambiguous. The GAO found, “To be responsive, a bid, as submitted, must comply in all material aspects with the terms of the IFB.”
The GAO further stated that “the required completion date is established by the plain language of Block 11,” and because the protestor failed to assure completion before Aug. 31, 2013, “its bid is nonresponsive and was required to be rejected.”
Cusack proposed the lowest bid, and except for one very small, but very material mistake, it would have been awarded the contract.
There is probably no place where attention to detail is more important than in submitting an offer in response to a government solicitation.
Government agencies are held to a high standard and must comply with the strict requirements of procurement law and regulation. Likewise, contractors are held to a high standard of attention to detail, and failure to meet that standard will result in offers being rejected and losing bid protests.