Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/134675
separate pricing for the Schedule "D" testing ($50,000) and a revised bid summary page reflecting these changes. MCSI's bid total of $13,629,519 for all work remained unchanged. FHWA denied its protest and MCSI protested to the CG. The CG reviewed the law that holds that in order to be responsive, a bid must constitute an unequivocal offer to perform the exact thing called for in the solicitation, such that acceptance of the bid will bind the contractor in accord with the material terms and conditions of the solicitation. The CG found that although MCSI acknowledged the amendment regarding Schedule "D," the mere acknowledgment without a price is insufficient to constitute a bid since doubt exists as to the amount of the bid and the bidder's obligation to perform the increased work. The CG also found that MCSI's explanation that its price was included in a different line item was inadequate since nothing established the price for Schedule "D." The CG stated that MCSI's non-responsive bid could not be made responsive by explanations after bid opening, since doing so would effectively allow the bidder to elect whether to accept or reject the additional work. MCSI argued its omitted price for Schedule "D" was a waivable minor informality. The CG reviewed the law that holds a failure to bid on a line item can be waived if the item for which the price is omitted is divisible from the IFB's overall requirements, de minimis as to total cost, and would not affect the competitive standing of the bidders. The CG found that one of the prerequisites for waiver was not met because the Schedule "D" work was not divisible. Although priced as an option, FHWA considered the Schedule "D" intelligent compaction work to be an essential part of the contract, intended to accelerate project delivery and improve pavement performance, and which would be ordered as soon as funding became available. MCSI asserted that FHWA could easily contract for the Schedule "D" intelligent compaction testing with the paving subcontractor used by MCSI (and other bidders). However, the government was not required to do so. Therefore, the CG concluded the Schedule "D" work was not divisible from the other parts of the contract, so that MCSI's failure to include a price for Schedule "D" could not be waived. As a result, MCSI's bid protest was denied. v 50,000 POTHOLES REPAIRED. CARS OF AMERICA, YOU'RE WELCOME. quikrete.com Text INFO to 205-289-3789 or visit www.betterroads.com/info 10102520_RoadRepair_BetterRoads.indd 1 Untitled-19 1 InCourt_BR0613.indd 29 Text INFO to 205-289-3789 or visit www.betterroads.com/info 5/20/13 10:42 AM 5/29/13 2:38 PM Better Roads June 2013 29 5/31/13 11:13 AM