The U.S. Government Accountability Office (“GAO”) recently sustained a bid protest in which the U.S. Department of Energy (“DOE”) found a construction contractor’s bid to be nonresponsive due to the contractor’s failure to provide all information required by Federal Acquisition Regulation (“FAR”) 52.225-9 and 52.225-10. When these FAR provisions are included in a solicitation, they set out a preference that a contractor use domestic products and materials in its construction project. If a contractor wishes to use foreign materials instead of domestic ones based on cost reasons, these FAR provisions require a contractor to provide data about the construction materials the contractor plans to use so that the agency can determine whether the Buy American Act should be applied to the contract.

In Addison Construction Co., B-416525.2 (Sept. 4, 2018), the protester requested an exception to the Buy American Act. The protester’s bid included a chart that listed, for both the foreign construction material included in the bid and the corresponding domestic material, some of the information required by FAR 52.225-9. However, DOE found that the bid was missing some of the required information and deemed the bid nonresponsive. GAO agreed that the bid did not include all information required by FAR 52.225-9 and 52.225-10, but disagreed that omitting this information rendered the bid nonresponsive.

Specifically, GAO found that:

While these requirements clearly require the submission of such information in order “[t]o permit evaluation of [exception] requests,” FAR clause 52.225-9(d), nothing in either the clause or the provision requires an agency to reject a bid as nonresponsive simply because it does not include such information. While FAR provision 52.225-10(d)(3) does contemplate the rejection of a bid as nonresponsive where the bid is based on the use of foreign construction material, and the agency has determined that no requested exceptions apply, this provision does not require the agency to reject a requested exception simply because the bidder did not provide every piece of information listed under FAR clause 52.225-9(c) and (d).

GAO also held that an agency is permitted to conduct its own investigation to determine the applicability of the requested Buy American Act exception so long as the missing information would not allow the bidder to alter or amend its price or the relative standing of its bid. In the context of the protester’s bid, GAO found that DOE should not have rejected the bid based on the missing Buy American Act information, and recommended that it consider the protester’s request for an exception to the Buy American Act.

About the Author: Julia Di Vito practices in the areas of government contracts, litigation, and labor and employment. She may be reached at [email protected].