Agency Relied on a GAO Decision in Rejecting Protester’s Bid, But COFC Said GAO Decision Wasn’t Supported by GAO Precedent

Relying on a GAO decision, the agency rejected the protester’s bid as nonresponsive. The COFC, however, found the agency should not have relied on that GAO decision. The court reasoned the GAO decision had misinterpreted GAO precedent. 

Togiak Management Services, LLC v. United States, COFC No. 23-1728 

• Bid Bonds – The Army Corps of Engineers issued a solicitation under the FAR’s sealed bidding process. The solicitation required bidders to submit bid bonds from sureties. The protester submitted bids with accompanying bid bonds. The Corps rejected the bids as nonresponsive. The protester had submitted bonds with photocopied signatures. Citing a GAO decision, the Corps contended bonds must contain “wet signatures;” photocopied signatures are not acceptable. 
• Class Deviation – At the outset of the COVID-19 pandemic, DoD issued a class deviation allowing electronic or mechanically-applied signatures on bid bonds. The protester argued this Class Deviation permitted the submission of photocopied signatures. The court disagreed. By its plain language, the Class Deviation only permitted electronic or mechanically applied signatures. It did not permit photocopied signatures. 
• GAO Decision – Although the Class Deviation didn’t apply, the court still found the rejection of the protester’s bids unreasonable. The court noted the Corps had based its decision on the GAO decision, which held that photocopied bid bonds are nonresponsive. The court, however, found this GAO decision was not supported by GAO precedent. The court found the cases cited in the GAO decision the Corps relied on did not hold that photocopied bonds are unacceptable. Rather, the cases cited in the GAO decision had rejected bonds for reasons other than photocopying. Thus, the court found the Corp’s reliance on the GAO decision was irrational. 

The protester is represented by Dirk D. Haire, Joseph Cohen, and David Timm of Fox Rothschild, LLP. The government is represented by Daniel Falknor of the Department of Justice and John Carrell and Molly M. Hunt of the Army Corps of Engineers. 

–Case summary by Craig LaChance, Senior Editor