Government Contracts Bid Responsive despite Missing Buy American Act Information
Friday, September 28, 2018

Bid Responsive despite Missing Buy American Act Information

By Government Contracts Editorial Staff

A protest of a contract award for the construction of a capacitor bank was sustained because the government improperly rejected the protester’s bid as nonresponsive. The invitation for bids contained FAR 52.225-9, which required the contractor to use only domestic construction material in performing the contract, unless an exception applied. If no exception applied, FAR 52.225-10(d)(3)(i) required the government to reject the bid as nonresponsive. The protester’s bid requested an exception to the Buy American Act on the basis of unreasonable cost for three categories of items. However, the contracting officer made the award to the next lowest-price bidder after determining the protester’s bid failed to provide information required by FAR 52.225-9 and FAR 52.225-10 and was therefore nonresponsive.

Supplier Information Missing. Under FAR 52.225-9, a contractor requesting an exception to the BAA construction materials requirement on the basis of unreasonable cost must provide with its bid, among other things, the time of delivery or availability of the materials, the location of the construction project, specific supplier information (including the name, address, and telephone number for the supplier, and a copy of the supplier’s response or a summary of the response), and “other applicable supporting information.” Here, the contractor included a chart that listed the description of the construction material, unit of measure, quantity, price, total cost, and country or state of origin, but it did not include the name, address, telephone number, and contact information for the suppliers that the protester surveyed, a copy of the suppliers’ responses, or any other supporting information.

Investigation Necessary. The Comptroller General explained that a bid should not be rejected as nonresponsive simply because it does not include all of the information needed to determine whether a BAA exception applies. Rejection is improper where the government can obtain missing information through its own investigation and the bidder’s relative standing is not affected. Here, based on the information provided in the protester’s bid, the bid was responsive. Although the bid did not include all of the information required under FAR 52.225-9 and FAR 52.225-10, it included sufficient information for the government to understand the foreign material being provided, and the quantity and costs of the material. “Thus, while the bid was missing required supporting documentation and details, the omission of this information would not enable [the protester] to alter the price, or relative standing, of its bid.” The Comptroller General recommended the government investigate whether the foreign construction materials listed in the protester’s bid qualified for a BAA exception based on unreasonable cost. (Addison Construction Co., 33 CGEN ¶116,085).

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