Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/134675
InCourt Court by Brian Morrow Attorney Brian Morrow is a partner in Newmeyer & Dillion LLP and a licensed civil engineer specializing in construction law, incl. road and heavy construction. brian.morrow@ndlf.com A Problem of Deviation T o be awarded a public contract, a contractor's bid must be responsive to the material requirements of the invitation for bids (IFB). Minor deviations may be waived, though material deviations may not. The failure to properly complete a bid form is a material deviation justifying rejection of a bid as non-responsive. Similarly, the failure to acknowledge amendments to an IFB, or submit a complete and unqualified bid form is non-responsive. Nonetheless, minor informalities (of form and not substance) that can be corrected without prejudice to other bidders are waivable at the owner's discretion. The key test is whether the bidder can be held to perform after taking into consideration all bid deviations so there would not be a competitive advantage over other bidders. In the Matter of Massillon Construction and Supply, Inc. (March 28, 2013), B-407931, the Comptroller General (CG) denied the protest of road contractor, Massillon (MCSI), finding its bid was non-responsive because it failed to submit a separate price for optional work as required by the IFB. The Federal Highway Administration (FHWA) solicited bids to rehabilitate approximately 6 miles of Newfound Gap Road in the Great Smoky Mountains National Park, Tennessee, divided into three schedules of work: Schedule "A," from Tennessee milepost (TMP) 6.3 to TMP 9.4, including full-depth pavement reconstruction; Schedule "B" (Option 1), including the same improvements from TMP 9.4 to TMP 12.4; and Schedule "C" (Option 2), including resurfacing from TMP 6.3 to TMP 12.4. Bidders were required to submit prices for each contract line item. Prior to bid opening, FHWA amended the IFB to add a third option (Schedule "D") for intelligent compaction (IC), coring and coordination with respect to a portion of the Schedule "A" work. In addition, the amendment included a new pricing page requiring entry of a lump sum price for Schedule "D," and a new summary page that added a line for a Schedule "D" price and required its inclusion in the sum total of all schedules. MCSI received most of the amendment. However, its fax did not print out five pages including the instruction pages and the replacement bid schedule pages. Instead of completing the replacement bid schedule pages, MCSI annotated a line item for contractor testing under Schedules "A" and "B" with the words "(Amendment 001)," and entered overall line item prices of $150,000 and $65,000, respectively. MCSI's total bid price of $13,629,519 was the lowest received by bid opening. However, its bid was rejected as non-responsive because it did not include prices for Schedule "D" work. MCSI filed a protest with FHWA asserting its bid was responsive because it acknowledged the amendment. MCSI argued its $150,000 price for the Schedule "A" testing line item included $50,000 for the Schedule "D" work, and argued FHWA could waive the omission of a specific Schedule "D" price as a minor informality. MCSI submitted a revised bid schedule including corrected pricing for the Schedule "A" testing ($100,000) and Schedule "A" total ($6,409,015.50), 28 June 2013 Better Roads InCourt_BR0613.indd 28 5/31/13 11:12 AM