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Request for Reconsideration

B-202208.2 Nov 04, 1981
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Highlights

A firm requested reconsideration of a decision in which its protest was denied. The protester submitted the low responsive bid for transformers requested in an Army Corps of Engineers invitation for bids (IFB). However, because the proposed transformers were Canadian end products, the Army added the Buy American Act's price differential to the bid price, and another firm was placed in line for the award. In its request for reconsideration, the protester argued that the IFB was misleading and that, as a result, it could not tell whether the procurement was for a civil work or whether the Act's price differential applied to Canadian end products. Prior to the date of receipt of bids, the protester requested clarification of this from the Army and was told that the differential would apply. However, the protester stated that the Army gave an indefinite response, and it sought further advice from the Defense Contract Administration Service (DCAS). DCAS said that Canadian end products would definitely be exempt from the procurement. The protester chose to accept this advice rather than that of the Army. In the original decision, GAO held that the protester accepted the erroneous advice of DCAS at its own risk. The key question then became whether the protester could disregard the Army's advice and rely on that of DCAS, which was nothing more than an informal opinion of a third party, not the Federal Government in its contracting capacity. If a bidder believes that a solicitation is ambiguous because the contracting agency is providing an erroneous or indefinite interpretation of a solicitation provision, the proper course of action is to file a protest prior to bid opening. The protester did not do this. As to the Army's allegedly indefinite response, the Army stated that it told the protester that the differential would be applied to Canadian end products. It is well established that the protester has the burden of affirmatively proving its case. Where the only available evidence is the conflicting statements of the protester and the contracting agency, as in the instant case, GAO has held that the protester has failed to meet its burden. Accordingly, the prior decision was affirmed.

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