By Government Contracts Editorial Staff
A protest of a purchase order award for touch-screen panels was sustained because the government failed to consider information the protester provided in response to a FedBid validation request. The procurement was conducted by FedBid using its reverse auction procedures. The protester submitted the lowest bid and checked the box on the FedBid website that stated “[t]he vendor complies with all terms listed by the [b]uyer,” but it did not specifically restate that its bid included maintenance. Following the close of the auction, FedBid sent the protester a validation request asking “[i]s your bid price correct, complete … and inclusive of all costs the [b]uyer would incur if your bid is selected?” The protester’s timely response stated “[t]he unit price … is correct [and] includes removing the existing panels and installing 86 [panels]” and “once a year maintenance for 3 years.” Although the protester submitted the lower price, the government issued the order to a different bidder because the protester did not specifically restate that it would provide maintenance. FedBid never notified the government that it issued the validation request to the protester and that the protester confirmed that its bid included maintenance.
Agent of Government. The Comptroller General explained that although FedBid is a private company, it acts as an agent for the agency conducting the procurement when it hosts a reverse auction on its website. FedBid’s inquiry requested that the protester confirm that its bid was complete and all items requested were included and further stated that an affirmative reply “provides additional information to the [b]uyer and confirmation that you understand the terms of this [b]uy and that your [b]id complies with these terms.” The protester’s response confirmed the price was correct and included removal and installation of panels and maintenance for three years. Although the contracting officer stated that he did not know that FedBid sent out the validation request, since the government authorized FedBid to act on its behalf, the government was required to consider the protester’s response to FedBid’s request before making an award. The purchase order had been fully performed, so the Comptroller General recommended only that the government reimburse the protester its bid preparation costs and its costs of filing and pursuing the protest. (BCW Group, LLC, 34 CGEN ¶116,338)
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