Protest Alleging Improper Rejection of Bid as Nonresponsive

B-204168.2: Feb 17, 1982

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A firm protested the rejection of its bid as nonresponsive to a Forest Service solicitation for a timber sale and the agency's subsequent refusal to permit a post-bid opening correction of an alleged mistake which would have made the firm's bid responsive. The protester claimed that it intended to bid the minimum price on one type of timber and that it inadvertently entered a lower price when posting its bid to the bid form. The protester argued that the contracting officer should have realized at bid opening that this price was probably a mistake and given it an opportunity to correct its bid. The Forest Service adopted the contracting officer's view that the protester's failure to offer the specified minimum acceptable price rendered its bid nonresponsive. The agency considered this a material deviation from the solicitation requirements since the minimum prices represented the appraised values of the various species as established by the Secretary of Agriculture and the National Forest Management Act of 1976 which prohibits the sale of timber for less than its appraised value. Although as a general rule a bid must be rejected as nonresponsive where it does not strictly conform to the solicitation terms and conditions, this rule does not apply to deviations which are immaterial or to matters of form rather than substance. Such deviations do not render a bid nonresponsive. The GAO question in this regard was whether the error constituted a minor informality or not. GAO rejected the Forest Service's view that the statutory prohibition against selling timber for less than its appraised value compelled rejection of the bid. The agency read the statute as requiring it to reject as nonresponsive any bid which failed to offer the minimum price for every species of timber, no matter how minor the deviation. GAO found this interpretation unnecessarily narrow. The stated congressional intent in adopting this prohibition was to assure that the United States would receive at least fair market value for its timber. Since the protester's bid clearly represented at least fair market value for the timber sale and the pricing deficiency met the criteria for correction of a minor informality, GAO concluded that the bid was responsive in all material respects and that the protester should have received the award if otherwise eligible. Accordingly, the protest was sustained.