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  • Writer's pictureDick Lieberman,Consultant

A Contracting Officer's Mistake about a Mistake

In a post-award bid protest of a sealed bid FAR Part 14 Federal Highway Administration ("FHA") award for road construction in the Virgin Islands, the low bidder was about to receive award when the contracting officer suddenly made a determination that there was a mistake in bid. The record showed that there was no basis for any such mistake, but there were unfounded agency concerns about the low bidder's ability to perform. The Court of Federal Claims permanently enjoined the award, finding the decision to award to the second low bidder arbitrary, capricious and contrary to law. The idea that the low bid contained a mistake was not supported by any written analysis from agency engineers, accountants, or the Contracting Officer, but only from agency counsel. Indeed, qualified agency officials indicated there was no mistake. Nothing justified the agency's decision to award to the second low bidder. Virgin Is. Paving, Inc. v. United States, 103 Fed. Cl. 292 (2012). IMPORTANT: Agencies must support their award decisions with rational analyses. If there is an alleged mistake in a bid, the documentation in the contract or solicitation file should clearly show where it was, what it was, and whether it could be corrected so as to award to that particular contractor. If the agency counsel was correct that there was a mistake, surely the agency engineers, accountants or contracting officer would have agreed with that finding.

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