ECDC Environmental, L.C. v. United States
1998 U.S. Claims LEXIS 12, 42 Cont. Cas. Fed. 77,250, 40 Fed.Cl. 236 (1998)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A bid that omits a page of a required form may still be considered responsive if the submitted, signed portion of the form incorporates the missing material terms by reference, thereby creating an unequivocal commitment to the solicitation's requirements.
Facts:
- The U.S. Army Corps of Engineers issued a two-step solicitation for a maintenance dredging project.
- ECDC Environmental submitted a technical proposal for step-one, which included a completed SF 1442 form (step-one SF 1442), and the government found it acceptable.
- For step-two, the government issued an amendment with a new SF 1442 form (step-two SF 1442), requiring bids to remain open for government acceptance for a minimum of 90 days.
- On August 15, 1997, ECDC submitted its step-two bid, which appeared to be the lowest bid.
- ECDC's bid package included the signed and executed back-side of the step-two SF 1442, but omitted the front-side.
- The submitted back-side of the form contained language referencing Item 13D, the 90-day acceptance period provision located on the missing front-side.
- ECDC's bid also included a complete, newly signed copy of the SF 1442 form from step-one, which had a different and already-expired acceptance period.
Procedural Posture:
- Another bidder, Great Lakes Dredge & Dock Co., submitted an agency-level protest to the U.S. Army Corps of Engineers, arguing ECDC Environmental's bid was nonresponsive.
- The contracting officer sustained the protest, finding ECDC's bid nonresponsive and rejecting it.
- ECDC Environmental filed a complaint in the U.S. Court of Federal Claims, initiating a pre-award bid protest action against the government.
- Great Lakes Dredge & Dock Co. intervened in the lawsuit on the side of the government defendant.
- The parties filed cross-motions for judgment upon the administrative record, bringing the case before the court for decision.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a bidder's failure to submit the front page of a required bid form, which contains the minimum bid acceptance period, render the bid nonresponsive when the submitted and signed back page of the form references the missing terms?
Opinions:
Majority - Futey, Judge
No. A bid is not rendered nonresponsive by the omission of a page containing a material term if the submitted, signed portion of the bid documents incorporates the missing term by reference, thereby creating an unequivocal commitment to the solicitation's requirements. To be responsive, a bid must comply in all material respects with the solicitation, which means it must contain sufficient terms so that the government's acceptance would form a binding contract. Here, ECDC submitted the signed back-side of the step-two SF 1442, which specifically referenced Item 13D on the missing front-side. Item 17 on the back-side states that failure to insert a number for the bid acceptance period means the offeror accepts the minimum in Item 13D. By leaving this space blank, ECDC unequivocally accepted the default 90-day period. Therefore, ECDC's agreement to the material term can be inferred from the submitted document, which incorporated the missing term by reference. The contracting officer's conclusion that the bid was ambiguous was unreasonable, as interpreting the bid to be bound by the expired timeline on the superfluous step-one form would lead to an absurd result. The omission was a minor, correctable clerical error, not a material failure that rendered the bid nonresponsive.
Analysis:
This decision clarifies the application of the doctrine of incorporation by reference in determining bid responsiveness in government contracting. It establishes that a clerical omission, such as a missing page, is not fatal if the bidder's unequivocal intent to be bound by all material terms can be inferred from the documents that were submitted. The ruling limits a contracting officer's discretion to declare a bid nonresponsive based on an ambiguity that can be resolved by a rational reading of the submitted documents as a whole. This precedent protects bidders from disqualification due to minor clerical errors and reinforces the distinction between a nonresponsive bid and a responsive one containing a correctable mistake.
