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GAO Takes Exception to Agency’s Rejection of Bid Under Buy American Act

September 13, 2018

In Addison Construction Company, GAO sustained a protest challenging the Department of Energy’s (DOE) rejection as nonresponsive of a bid that sought an exception to Buy American Act (the Act) requirements without providing certain information called for by FAR 52.225-9 and 52.225-10 (the clauses relevant to the exception request). While GAO acknowledged that the protester failed to provide certain required information, GAO nonetheless held that DOE could not simply reject the bid. Instead, because the protester provided sufficient information for DOE to understand the basis for the request, and because the omission of the information provided the protestor with no competitive advantage, GAO held that DOE was required to investigate whether an exception was appropriate. While the decision appears to flip the obligation that offerors submit well-written complete proposals, the decision is limited to the Act itself and the clauses at issue, which GAO held do not “require[] an agency to reject a bid as nonresponsive” in the face of missing information. As such, protestors should take heed that this case about exceptions to the rule represents the exception, not the rule.

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