Georgia Tech Procurement Assistance Center

GAO says strict bid compliance with Buy American Act exception requirements not necessary

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The GAO recently sustained a protest finding that it was unreasonable for the Department of Energy (DOE) to reject a bid simply because it failed to strictly comply with all of the requirements for an exception to the BAA.

In Addison Constr. Co., B-416525, Addison Construction Company submitted a bid to construct a capacitor bank for DOE in Arizona. Addison’s bid informed DOE that a portion of the construction materials used would be foreign, not domestic. Addison’s bid requested an exception to the BAA pursuant to FAR clause 52.225-9, available when the cost of domestic construction material is “unreasonable” (i.e., it exceeds the cost of foreign material by more than six percent).

Under FAR clause 52.225-9, a contractor seeking an exception to the BAA construction materials requirement on the basis of unreasonable cost must include the following with its bid: price, quantity, unit of measure, and a description of the foreign and domestic materials at issue, along with a detailed justification for the use of foreign construction materials, a “reasonable survey of the market,” and a completed price comparison table in the format provided in FAR clause 52.225-9(d). In addition, the clause requires the contractor to provide the time of delivery or availability of the materials, the location of the construction project, specific supplier information (including the name, address, and telephone number for the supplier, and a copy of the supplier’s response or a summary thereof), and “other applicable supporting information.”

Keep reading this article at: https://www.lexology.com/library/detail.aspx?g=5c1472f9-6d91-4b8e-8983-ca1b544bf880 

Commandant plays hardball with industry on buying gear

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Marine CorpsThe top officer of the Marine Corps has a message to industry: Gear delivered to the Marine Corps must arrive faster, in working order, and with adequate parts.

Speaking at a panel of sea service chiefs Monday morning at the Navy League’s Sea Air Space expo near Washington, D.C., Gen. Robert Neller didn’t mince words, telling a crowd dense with industry leaders that a trend of contract award protests was costing the Corps time it couldn’t afford.

“There is the tension: How do you go faster in this world when you’ve got rules that are designed to allow everybody here to compete, and even if you don’t win the bid, you get to protest,” he said. “OK, I understand that; that’s business, that’s money, that’s what you need to do …  But we’ve got an obligation to men and women in our service to give them new gear as soon as we can.”

Keep reading this article at: http://www.dodbuzz.com/2016/05/16/marine-commandant-plays-hardball-with-industry-on-buying-gear

When submitting a proposal, late is late — now, even early may be late

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GAO-GovernmentAccountabilityOffice-SealOfferors must overcome numerous hurdles in preparing and submitting proposals on a timely basis. A recent decision by the U.S. Government Accountability Office (GAO) has added yet another, and unexpected, obstacle – offerors now must be aware of and plan for the kidnapping of an otherwise timely proposal by an agency’s spam filter.

It is a well-established principle that offers submitted after the submission deadline will not be considered for award, unless the circumstances specified in the Federal Acquisition Regulation (FAR) permitting acceptance of a late offer are met. The FAR is clear that the obligation is on the offeror to submit the proposal on time:

“Offerors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” FAR 52.212-1.

Applying this principle in a recent decision, Advanced Decisions Vectors, Inc., B-412307, Jan. 11, 2016, the GAO ruled that a contractor failed to timely submit its quote when the contractor’s email containing the quote was blocked by the agency’s spam filter from reaching the individual designated to receive quotes by the time specified in the solicitation. The decision serves as a warning to contractors that even an early submission of an offer may be ensnared by the tentacles of a spam filter and deemed late if it does not reach the intended recipient by the deadline as a result.

Keep reading this article at: http://www.wileyrein.com/newsroom-newsletters-item-When-Submitting-a-Proposal-Late-Is-Late.html

What does it take to be a ‘responsive bidder’?

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In a previous article we discussed the requirement that, if it awards a public works contract, a public entity in the State of Georgia must award the contract to the “lowest responsible and responsive bidder,” unless an exception to this requirement applies.

This article addresses what it means to be a “responsive bidder.”  While responsibleness focuses on the bidder or proposer, responsiveness focuses on the bid or proposal.  Specifically, responsiveness requires that a bid or proposal respond and conform to the requirements of the invitation for bids or request for proposals (the “Bid Documents”).

Any deviation from the requirements of the Bid Documents may be considered non-responsive.  But public entities have the discretion to waive minor deviations from the requirements of the Bid Documents.  Minor deviations are a matter of form and not of substance, or they pertain to some immaterial or inconsequential defect or variation from the exact requirement of the Bid Documents.  For example, a minor deviation may occur where a bidder fails to initial a price change, or to write the solicitation number, date, and time of bid opening on its bid envelope, or to provide incidental information requested in the bid documents, such as information about its affiliates, or to include a unit price where the unit price can be calculated by dividing the line item total by the estimated quantity.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=463746

E-mail snafu no reason to disqualify company’s bid

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Rain nor snow nor flooded e-mail servers will stop the delivery of a contract proposal.

The U.S. Court of Federal Claims has ruled that the Army Corps of Engineers should not have disqualified a bid because it arrived via e-mail four minutes after the noon deadline.

The proposal from Watterson Construction Co. was held up because the Corps e-mail servers were in the midst of a “mail storm,” causing unusual delays in distributing e-mails.

Judge Susan Braden ruled that the company’s bid was not late because it “was both reached and received by the government’s e-mail servers before the due date.”

According to the decision, a mail storm is an “e-mail sent to a large number of users, a sufficient number of whom reply to all, flooding an e-mail system and disabling it.”

“Watterson’s proposal was improperly eliminated from the competition, as the disturbance in the Army Corps’ servers entitled Watterson to a one-day time extension,” Braden wrote in her ruling.

Braden wrote that today’s e-mails are sent instantaneously in the ordinary course of business, and a problem such as a mail storm is abnormal. The judge concluded then that the mail storm was an “emergency or unanticipated event.” As a result of the emergency, the Federal Acquisition Regulation extends the deadline to bidders for 24 hours.

“It is true that at the time proposals were due, the Army Corps Office was open for business and proposals could have been delivered by hand,” Braden wrote. “The court, however, does not construe the phrase ‘proposals cannot be received’ to mean that it must be impossible for the government to receive proposals, before the ‘emergency’ or ‘unanticipated event’ exception applies.”

— About the Author: Matthew Weigelt is acquisition editor for Federal Computer Week – published Mar. 31, 2011 at http://washingtontechnology.com/articles/2011/03/31/court-ruling-mail-storm-bid-proposal-deadline.aspx?s=wtdaily_010411 

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