Mr. Thomas J. Larkin
Director, Procurement & Material Management
Metro North Railroad
347 Madison Avenue
New York, New York 10017-3000
Dear Mr. Larkin:
This responds to your April 12, 2004, letter sent to our regional office, requesting a price-differential waiver of the Buy America requirements for the Dutchess County Harlem Valley Rail Trail, Phase III construction project contract.
In this case, the apparent low bid, submitted by Colaruso and Son (Colaruso), is more than 25 percent below the second low bid. The Buy America requirements allow grantees to request a price-differential waiver if the domestic, compliant bid is more than 25 percent over the foreign, non-compliant bid. The implementing regulation, at 49 CFR 661.7(d), provides that a price-differential waiver will be granted if the amount of the lowest bid offering the item or material that is not produced in the United States multiplied by 1.25 is less than the amount of the lowest bid offering an item or material produced in the United States. That is the case here.
However, Colaruso certified both compliance and non-compliance with the Buy America requirements. Normally, such a bid would be rejected as non-responsive because it is ambiguous as to Buy America compliance and, thus, ambiguous as to the offered price for purposes of evaluation. Section 661.13(b) allows a bidder to correct a certification for clerical or inadvertent error; however, not, as here, where a bidder certifies both compliance and non-compliance. Accordingly, Colaruso cannot correct its bid.
Although procurement law dictates that ambiguous bids should be rejected as not responsive (see, e.g., Trade-Winds Environmental Restoration, Inc., 1995 WL 92625 (Comp. Gen.)), an exception is made where accepting the bid would not prejudice other bidders.
[A] bid should not be rejected as non-responsive because it does not contain all of the information necessary to perform a Buy American Act analysis only where the additional information required from the bidder would not change the relative standing of the bidders . . . or allow the bidder to manipulate its bid to its advantage.
Seal and Company, Inc. v. Washington Metropolitan Area Transit Authority, 768 F. Supp. 1150, 1158 (1991), citing, Matter of Manatts, Comp. Gen. B- 237532 (1990)(emphasis supplied). Under the circumstances presented here, where the bidder erred in its bid, but is also more than 25 percent less than the second low bid, and when under either interpretation of the ambiguity, the low bidder would be successful, Dutchess County may accept the low bid.
Given our analysis of this procurement, and the indication by Colaruso that it will comply with the Buy America requirements, I do not find it necessary to grant a waiver. To allow the contract to be awarded at the stated price and as Buy America compliant, serves the policy objectives the statute embodies without violating the principles of procurement law under these particular facts.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Region 2 Administrator
Where bidder certifies both compliance and non-compliance with the Buy America requirements, normally a bid would be rejected as non-responsive because it is ambiguous as to Buy America compliance and cannot be corrected. However, where the bidder erred in its bid, but is also more than 25 percent less than the second low bid, and when under either interpretation of the ambiguity, the low bidder would be successful, the grantee may accept the low bid.
May 21, 2004