The issue on appeal was whether ITSI “qualified” its lump sum bid such that it could not be considered a firm offer and must be rejected as non-responsive. OPA found that ITSI’s bid was responsive, the contracting officer properly solicited additional information with which to make a responsibility determination, and the contracting officer’s responsibility decision had a rational basis, with no showing of fraud or bad faith or prejudicial violation of an applicable statute or regulation.

GPPC argued that ITSI had “qualified” its lump sum bid in order to protect against future changes in conditions, i.e., that ITSI used its bid to lay a foundation for subsequent change orders. GPPC further argued that by doing so, ITSI removed the risk from its bid and thus had unfairly prejudiced other bidders who had to factor the risk of changed conditions and increased equipment, materials, or sub-contractor prices into their bids.

The Director, in his Report, disagreed with GPPC that ITSI was setting itself up for change orders and noted that the five instances of qualified language identified by GPPC were all in the proposal text, not in the fixed, lump-sum proposal. Moreover, the Director found ITSI’s use of language in the proposal text was for the purpose of providing sufficient detail in order to demonstrate an understanding of the nature of the project and its intended approach, and to identify a source for the fill materials.

The OPA Decision on the Appeal compares and contrasts responsiveness and responsibility. Bid responsiveness concerns whether a bidder has offered to provide supplies and / or services in conformity with all material terms and conditions of a solicitation for sealed bids and is determined at the time of bid opening. Responsibility refers to a bidder’s future apparent ability and capacity to perform, and is predictive in nature. The bidder may provide responsibility information to the contracting officer at any time before award.

In order to award a contract, an agency must make a responsibility determination, regardless of whether the solicitation is an Invitation for Bid or a Request for Proposals. If an agency needs additional information to facilitate its responsibility determination, it may properly obtain this information from the offeror, after the closing date for receipt of offers, without conducting negotiations with all competitive range offerors or seeking revised proposals from them.

The contracting officer is the arbiter of what and how much information s/he needs to determine responsibility. Because responsibility decisions are largely a matter of judgment, contracting officers are generally given wide discretion to make this decision.
The contracting officer evaluated ITSI’s bid as the lowest presumptive bidder and sent it additional questions in order to facilitate its responsibility determination. ITSI provided written responses to the queries, which were then corroborated through a telephone conference that was later transcribed.

GPPC suggests that the inquiries made by the contracting officer went to the issue of responsiveness not responsibility and were therefore improper, but the inquiries were what one would expect regarding responsibility on a large, specialized construction project.

The contracting officer’s actions in this case were entirely reasonable, particularly given the threat of sanction for failure to comply with a federal environmental order and the magnitude of the project and contract. Responsibility determinations are generally not reviewed where there is no showing of fraud or bad faith on the part of the contracting officer.

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