Complaints Concerning Spokane Indian Housing Authority Contract Award

Two firms filed complaints concerning a contract award by an Indian housing authority for the construction of housing units financed by the Department of Housing and Urban Development (HUD). GAO believed that the complaints were properly for its consideration as they involved a procurement made by a recipient of Federal grant funds which imposed upon the recipient certain conditions of payment and required the housing authority to comply with all HUD regulations including the requirement to award the contract to the lowest responsible bidder. The invitation for bids (IFB) required bidders to bid on a lump sum basis and provided for a separate itemized listing of the amounts. The IFB also provided that the award would be made to the lowest responsible bidder and stated that described provisions of the Indian Self-Determination and Education Assistance Act give preference in the award of contracts to Indian organizations. A joint venture submitted the lowest lump-sum bid. However, its individually priced items totaled more than the lump sum. Following bid opening, the discrepancy in the joint venture's bid was discussed, and the housing authority accepted the joint venture's explanation of the discrepancy and awarded the contract to it. One protester objected to an award to any firm other than itself contending that the Indian-owned enterprise provisions should apply. Another firm objected to the award on the basis that the awardee's bid was ambiguous and should not Have been accepted. Since the IFB did not specifically provide for a 10-percent preference for Indian-owned enterprises and HUD regulations do not otherwise require such a preference, GAO saw no basis upon which to conclude that the first protester was entitled to the award. As to the second protest, the awardee's bid was subject to two reasonable interpretations and should not have been accepted because it was the low bid under only one of the interpretations. Since the ambiguity could not be resolved through the bid itself, but only through further negotiations, the bid should not have been accepted. Accordingly, the complaint of the first protester was denied, and the complaint of the second protester was sustained in part and denied in part. However, GAO could not recommend corrective action for the procurement because of the substantial time that had elapsed since the contract award.