Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest sustained.
Protest that agency unreasonably rejected protester’s bid for not meeting solicitation requirements is sustained, where invitation for bids did not restrict bids to specific types of chillers or refrigerants and record does not support that agency reasonably considered protester’s bid.
General Counsel P.C. Highlight:
VCG argues that its bid for a Trane chiller met the requirements and specifications of the IFB. In the alternative, VCG argues that the VA should have accepted its alternate bid for a York chiller as the low bid for the project. The agency argues that the IFB called for a specific “brand name refrigerant” to be used, and VCG’s bid “failed to meet the criteria” in the IFB. GAO first states that to be responsive, a bid must show on its face at the time of bid opening that it is an unqualified offer to comply with all material requirements of the solicitation, and that the bidder intends to be bound by the government’s terms as set forth in the solicitation. A bidder’s intention must be determined at the time of bid opening from all the bid documents, which include any extraneous documents submitted with the bid, since such materials are part of the bid for purposes of determining responsiveness.
As an initial matter, we first address whether the agency should have considered VCG’s alternate bid for the York chiller. GAO concludes that it was reasonable for the VA to reject the alternate bid. In this regard, the IFB included a FAR clause stating that the agency would not consider alternate bids unless the IFB authorized their submission. Since the IFB here did not authorize the submission of alternate bids, the VA’s decision to reject VCG’s alternate bid for the York chiller is unobjectionable.
Next, GAO finds that the contemporaneous record contends vaguely that cut sheets for the Trane chiller were “questionable” and that the R-123 refrigerant associated with the Trane chiller did not meet the specifications of the IFB, without any explanation of what was questionable or what specifications were not met. Despite multiple opportunities, the agency has not explained why VCG’s proposal failed to meet the IFB’s requirements, which of the 384 pages of specifications and drawings were not met, or what in the 14 pages of documentation describing the chiller model VCG included in its bid was questionable. Without support for its conclusions, GAO cannot find that the agency acted reasonably in rejecting VCG’s bid.
Additionally, to the extent the agency argues that the IFB’s specifications required a particular brand name chiller or refrigerant, the record does not support that assertion. The specifications identified three manufacturers that offered products that “may be” used in the project, but the IFB did not restrict bidders to these brands exclusively. Similarly, the IFB refers both to the use of HFC-134a refrigerant and R-123 refrigerant, and it did not restrict bidders to a particular type. GAO therefore finds the agency’s rejection of VCG’s bid on the basis that the bid was not for a specified chiller and refrigerant to be inconsistent with the solicitation. The protest is sustained.