FAR Non Responsive Bid Proposal

Non responsive bid proposals occur when the contracting agency excludes your bid because it materially failed to follow the solicitation requirements. Unless your mistake was minimal and immaterial, GAO tends to rule that the Agency made a reasonable decision. However, there are situations where agency exclusions were unreasonable.

What happens in GAO protests  when your competition challenges non responsive bid proposals? Sometimes, you may think that the omission or error in your bid is minor and that you should not be penalized.

However, successful GAO protests hinge on whether the agency’s waiver or your omission is equal to being unreasonable.

• In GAO protests, the government will attempt to argue was responsive because it properly waived the discrepancies in your bid because it did not show material variations from the RFP requirement.
• GAO generally does not interfere with a federal contracting agency’s decision unless the decision to waive  unresponsive bid proposals was unreasonable or violates procurement law.
• If the omission in your bid proposal is material, then you will more than likely lose the award for being non responsive.

You must respond to all items in the solicitation and any later amendments.

GAO Protests Analysis to FAR Non Responsive Proposals

Non responsive definition: Respond to pricing in all line items to include options years. Failure to include required pricing is an example of a costly mistake that can make your revenues evaporate into thin air due to non responsive bid proposals.

• The legal analysis in GAO protests is that you have not actually committed to performing in the option years.
• Without pricing, the agency will have a hard time convincing GAO how it could have effectively evaluated pricing.

GAO bid protests have created decisions to support this position. For example, GAO has ruled that a bid that fails to include a price for every item required by the IFB generally must be rejected as non-responsive. HH&K Builders, B-232140, Oct. 20, 1988, 88-2 CPD ¶ 379 at 2, recon. denied, B-232140.2, Nov. 30, 1988, 88-2 CPD ¶ 537.

• Unresponsive bid proposals can include your failure to offer a responsive bid for optional contract line items, which thus renders the entire bid  as non responsive.

When applying this rule, GAO protests would suggest the legal principle that a bidder who has failed to submit a price for an item generally cannot be said to be obligated to furnish that item. United Food Servs., B-218228.3, Dec. 30, 1985, 85-2 CPD ¶ 727 at 3.

Therefore, where a page in a bidder’s schedule does not clearly show that the prices apply to an option that the IFB requires to be priced, the bid is ambiguous and thus, non-responsive. Thompson Metal Fab, Inc., B-293647, May 4, 2004, 2004 CPD ¶ 109 at 3.

• What happens in GAO protests where your proposal is not responsive but you want to protest an award?
• To file a GAO bid protest, you must have standing to bring the action.

File a Bid Protest Immediately After Notification of Being Non Responsive: If the government decides that you have submitted a non responsive bid, you first should not wait until after the award to file GAO protests. You should do so right away. Second, if your bid is non-responsive, you may lack standing to file the protest anyway.

You Still Must Meet the Interested Party Filing Requirement: If the agency decides that you have submitted a non responsive bid proposal, and GAO agrees, then you run the risk of not meeting the interested party filing requirement.

A party invoking jurisdiction “bears the burden of establishing the elements of standing. To have standing as an interested party, the party invoking jurisdiction must be an actual or prospective bidder whose direct economic interest would be affected by the award of the contract. To prove a direct economic interest, a party must show that it had a ‘substantial chance’ of winning the contract.”

Situations Where You Could Overcome Non Responsive Bid Proposal Allegations: However, the facts of your case, could in fact overcome the non responsive bid protest legal standing  and interested party requirement. Situations that could overcome these hurdles could include:

• Improper or lack of meaningful discussions, and
• Government responses to question and answer sessions

Takeaway: As stated earlier, when you do not respond to the critical aspects of a government contract solicitation, you now have a non responsive bid. Your competition’s GAO protests lawyer will more than likely win the protest by convincing GAO that the agency’s failure to consider your bid proposal as non responsive was unreasonable.

For help or concerns about filing bid protests due to FAR non responsive proposals, call our attorneys at 1-866-601-5518.