Request for Reconsideration

The Urban Mass Transportation Administration (UMTA) requested reconsideration of a prior decision which concluded that the low bidder on a grantee solicitation should have been allowed to substitute a new minority subcontractor after bid opening. In that decision, GAO favored the protester and reasoned that documentation bearing on a bidder's compliance with the solicitation's minority business specifications concerned the bidder's responsibility and could be provided after bid opening even though the solicitation stated that it could not. UMTA believed that the decision was too sweeping and would unreasonably restrict participation of minority subcontractors. UMTA was concerned that, under the decision, grantees cannot treat compliance with minority business requirements as a matter of bid responsiveness. UMTA argued that it was not improper under Federal law to require bidders to identify qualified firms in their bids sufficient to meet a solicitation's minority or female subcontracting goals as a condition of bid responsiveness. GAO believed that the concern by UMTA was unwarranted. GAO has no legal objection if grantee solicitations require that bidders submit with bids a written assurance of meeting the minority subcontracting goals. Failure to submit an unambiguous certification can properly be a basis to exclude the bidder from consideration for award. In addition, UMTA was concerned that a grantee must permit substitution of subcontractors after bid opening. GAO believed that, where a grantee's solicitation requires certification, the low bidder's agreement to perform the work utilizing the goal of minority subcontractors would satisfy the conditions of responsiveness. Accordingly, since there had been no showing of errors of law or fact in the prior decision, it was affirmed.