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Failure To Submit an Original Bid Guarantee at Bid Opening Is Not a “Minor Informality”: Hamilton Pacific Chamberlain LLC, No. B-40979

On August 11, 2014, the Government Accountability Office (“GAO”) sustained a protest on grounds that the winning contractor’s bid was nonresponsive because the contractor provided only a copy of the required bid guarantee with the bid. Hamilton Pacific Chamberlain LLC (“HPC”) had protested the award of a service-disabled veteran-owned small business set-aside contract for steam trap replacement and installation of a new steam trap monitoring system at the VA Medical Center in Baltimore, Maryland to Utility Systems Solutions, Inc. (“US2”). US2 itself had protested to the agency contracting officer’s initial decision that US2’s bid should be rejected because it had not provided the required bid guarantee. The VA had upheld US2’s protest after determining that US2 had submitted a copy of its bid guarantee with its bid, and it had concluded that US2’s failure to provide an original bid guarantee should be considered a minor informality or irregularity that US2 cured after bid opening.

However, the GAO concluded that US2’s submission of a photocopied bid guarantee without original signatures was not a “minor informality or irregularity” that may be waived or cured after bid opening. In coming to this conclusion, the GAO noted that a bid guarantee was a material condition of the Invitation for Bid with which there must be compliance at the time of bid opening, and that precedent established that copies of bid guarantee documents generally do not satisfy the requirement for the submission of a bid guarantee. Accordingly, the GAO recommended that the VA reject US2’s bid as nonresponsive.

© 2020 Covington & Burling LLPNational Law Review, Volume IV, Number 241

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About this Author

Alan Pemberton, Covington, Litigation attorney
Senior Counsel

Alan Pemberton has practiced in the government contracts area since 1982, and chaired or co-chaired Covington’s government contracts practice from 2000 to 2016. His practice includes the full range of government contracts matters, including bid protest and other procurement litigation before GAO, agency boards, and federal and state courts and ADR tribunals. He advises large and small contractors and grantees about the full range of government proposal, performance, compliance, regulatory, suspension and debarment, transactional and legislative issues. He also directs...

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Jennifer Plitsch, Litigation attorney, Covington
Partner

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group where her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions as well as litigation, transactional and legislative issues. She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations and Bayh-Dole Act, and has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements CRADAs, Cooperative Agreements, Grants and Small Business Innovation Research agreements.

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Susan B. Cassidy, Government Contracts Attorney, Covington Burling, Law Firm
Partner

Susan Cassidy advises clients on the complex rules and regulations imposed on government contractors, with a special emphasis on the defense and intelligence sectors. She combines a sophisticated knowledge of the FAR and DFARS with the practical insight gained from senior in-house positions at both dedicated defense and commercial item contractors.

Ms. Cassidy conducts internal investigations for clients on wide array of government contracts and national security compliance issues. She regularly advises on FAR mandatory disclosure obligations and represents...

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