Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/85911
Low Bid Rejection InCourt T here are various grounds to protest the improper award of a bid by a public agency. After advertis- ing a project, typically in an invitation for bids (IFB), the public owner must open the bids and award the contract to the "lowest responsive, responsible bid- der." To be awarded the contract, the low bidder must have been determined to be respon- sive to the IFB and be a responsi- ble bidder. Responsive refers to the bidder's conformance with the ma- terial elements of the solicitation, and is determined at the time of bid opening. The requirement for a responsible bidder addresses the trustworthiness, quality, fitness and capacity of the bidder to perform the work, and is often determined after bid opening. In a recent case, Virgin Islands Paving, Inc. v. U.S. (Jan. 31, 2012), the Federal Highway Administration (FHWA) decision to reject the low By Brian Morrow FHWA's Overturned Agency did not assess contractor's bid, but rather simply tried to find a way to reject low bid. bid of an engineering contractor for a road project in the Virgin Islands was overturned by the U.S. Court of Federal Claims as arbitrary, capricious and an abuse of discretion. The FHWA, working with the Virgin Island 31a March 2012 Better Roads Department of Public Works (VIDPW), prepared an es- timate to widen and reconstruct a road. The engineer's estimate was for $8,550,000, plus administrative costs, for a total of $9,994,500. The July 25, 2011 IFB indi- cated the project would likely cost between $5 and $10 million. Two bidders submitted bids — Virgin Islands Paving, Inc. (VIP) and Island Roads Corporation (IRC). VIP submitted a bid for $6,762,720 (20.9-percent lower than the engineer's estimate), and certified that it was a Small Business Concern. IRC submitted a bid for $7,917,130 (7.4-percent lower than the engineer's estimate and 14.6-percent more than VIP). Although VIP was the low bidder, the FHWA and VIDPW had two concerns about VIP's bid. First, the FHWA received "some past per- formance reports that were not very good" regarding VIP's previous work for VIDPW. Second, they were con- cerned that VIP's low bid reflected a poor understanding of the project. As a result, the FHWA reviewed both bids, with the primary focus on line items where the bid price varied significantly from the engineer's estimate unit prices. Better Roads February 2012 35