[Protest of Rejection of Bid as Nonresponsive]

B-209214: Feb 28, 1983

Additional Materials:


Office of Public Affairs
(202) 512-4800

A firm protested the rejection of its bid as nonresponsive to an invitation for bids (IFB) issued by the Corps of Engineers for a construction project. The solicitation contained a notice concerning the application of the Buy American Act. The protester submitted a bid which provided that approximately 18 percent of the proposed contract price represented foreign content or effort. The protester priced all the items in the bidding schedule that required the insertion of a unit price and a total estimated amount. However, its bid did not include a statement as to what item or items constituted the 18-percent figure, as required by the notice. This caused the Corps to reject its bid. GAO has held that the act provides that domestic construction materials must be used unless the agency determines that domestic materials are unavailable or unreasonably priced. Through its own investigation, any agency may provide information concerning unavailability or unreasonable prices of domestic items. However, the bids must be responsive to the terms of the IFB before the agency can supply the information necessary to perform the evaluation. The protester contended that its failure to furnish the information should not have rendered its bid nonresponsive. The Corps argued that, without an indication of the percentage of foreign materials, the protester would have been able to manipulate its bid to obtain or forsake an award. GAO found that the protester's bid clearly did not include an itemization of the quantity and price of each foreign item proposed; however, this did not render its bid nonresponsive. Also, there was nothing in the record to support the Corps' view that the protester would have been able to manipulate its bid to its own advantage. Having found that the protester's bid was responsive, the only additional factor needed to determine whether the act should have been waived was whether the domestic steel was unreasonably priced. Therefore, GAO recommended that the Corps consider the protester's bid and conduct the necessary analysis to determine whether the domestic materials were unreasonably priced. Accordingly, the protest was sustained.