Bid Protest Lawyer Blog

GAO Bid Protest Waiver of Discrepancies

Posted by Joseph Whitcomb on Feb 25, 2014 11:32:36 PM
Joseph Whitcomb

C&D Construction's GAO Bid Protest against RUSH Construction

 bid protest waiver of discrepancies

C&D Construction argued in its bid protest that RUSH Construction’s bid to repair the Canaveral Lock East and West Canaveral Lock and Barge Canal should have been rejected as nonresponsive.

The Invitation for Bids (IFB) incorporated the provisions of the FAR, which provided for evaluation of price as the sum of all base and optional prices, FAR § 52.217-5. The 5th amendment to the IFB included several changes, including a change in references, which indicated that the contractor would reuse and reinstall approximately 1,190 linear feet of fender material, and “would supply the remainder as new fender material.”

At the opening of the bids, the contracting officer noted that RUSH’s bid schedule was different from the one provided in the amended IFB. The contracting officer did not allow inspection of original bids or duplicates under FAR § 14.402-1(c), so C&D relied on this statement from the contracting officer to file its bid protest. The contracting officer prepared a memorandum detailing her conclusion about the inconsistencies, denoting incorrect numbering, but stating that “title, quantities and all material aspects of the bid schedule” were correct. The memorandum also articulated that RUSH’s bid acknowledged all five amendments as was materially consistent with the IFB.

The contracting officer ultimately awarded the contract to RUSH as it was the lowest bidder. C&D was the second lowest bidder. C&D protested stating RUSH’s bid should have been rejected as non-responsive, because of the discrepancies in its bid schedule. The Corp of Engineers and RUSH argued that the agency properly waived the discrepancies, because the bid did not vary significantly from the IFB. The GAO ruled that it did.

The GAO determined that the “discrepancies in Rush’s bid here were not a mere minor informality,” but rather reflected a commitment for less work than was identified in the original IFB. Specifically, the GAO found that at the time of bid opening, “RUSH had not made a firm commitment to perform the east wall scope of work at specific line item prices.” Since the identified discrepancies reflected material differences in the work and the manner of its performance, they could not be waived.

The GAO recommended that the agency revoke RUSH’s waiver of discrepancies, terminate the contract under “convenience of the government,” and award the contract to the next lowest bidder. GAO also recommended that C&D be reimbursed for its cost of filing and pursuing its protest, including reasonable attorneys’ fees.

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