48 C.F.R. § 14.404-2

14.404-2 Rejection of individual bids.

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(a) Any bid that fails to conform to the essential requirements of the invitation for bids shall be rejected.

(b) Any bid that does not conform to the applicable specifications shall be rejected unless the invitation authorized the submission of alternate bids and the supplies offered as alternates meet the requirements specified in the invitation.

(c) Any bid that fails to conform to the delivery schedule or permissible alternates stated in the invitation shall be rejected.

(d) A bid shall be rejected when the bidder imposes conditions that would modify requirements of the invitation or limit the bidder's liability to the Government, since to allow the bidder to impose such conditions would be prejudicial to other bidders. For example, bids shall be rejected in which the bidder—

(1) Protects against future changes in conditions, such as increased costs, if total possible costs to the Government cannot be determined;

(2) Fails to state a price and indicates that price shall be price in effect at time of delivery;

(3) States a price but qualifies it as being subject to price in effect at time of delivery;

(4) When not authorized by the invitation, conditions or qualifies a bid by stipulating that it is to be considered only if, before date of award, the bidder receives (or does not receive) award under a separate solicitation;

(5) Requires that the Government is to determine that the bidder's product meets applicable Government specifications; or

(6) Limits rights of the Government under any contract clause.

(e) A low bidder may be requested to delete objectionable conditions from a bid provided the conditions do not go to the substance, as distinguished from the form, of the bid, or work an injustice on other bidders. A condition goes to the substance of a bid where it affects price, quantity, quality, or delivery of the items offered.

(f) Any bid may be rejected if the contracting officer determines in writing that it is unreasonable as to price. Unreasonableness of price includes not only the total price of the bid, but the prices for individual line items as well.

(g) Any bid may be rejected if the prices for any line items or subline items are materially unbalanced (see 15.404-1(g)).

(h) Bids received from any person or concern that is suspended, debarred, proposed for debarment, or declared ineligible as of the bid opening date shall be rejected unless a compelling reason determination is made (see subpart 9.4).

(i) Low bids received from concerns determined to be not responsible pursuant to subpart 9.1 shall be rejected (but if a bidder is a small business concern, see 19.6 with respect to certificates of competency).

(j) When a bid guarantee is required and a bidder fails to furnish the guarantee in accordance with the requirements of the invitation for bids, the bid shall be rejected, except as otherwise provided in 28.101-4.

(k) The originals of all rejected bids, and any written findings with respect to such rejections, shall be preserved with the papers relating to the acquisition.

(l) After submitting a bid, if all of a bidder's assets or that part related to the bid are transferred during the period between the bid opening and the award, the transferee may not be able to take over the bid. Accordingly, the contracting officer shall reject the bid unless the transfer is effected by merger, operation of law, or other means not barred by 41 U.S.C. 6305 or 31 U.S.C. 3727.

[48 FR 42171, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986; 55 FR 25527, June 21, 1990; 55 FR 36795, Sept. 6, 1990; 56 FR 29127, June 25, 1991; 62 FR 232, Jan. 2, 1997; 62 FR 51270, Sept. 30, 1997; 65 FR 80265, Dec. 20, 2000; 66 FR 17756, Apr. 3, 2001; 66 FR 66986, 66989, Dec. 27, 2001;79 FR 24201, Apr. 29, 2014]

Notes of Decisions

Cited in 13 cases, 1988–2013 · leading case: Davis/HRGM Jt. Venture v. United States, 50 Fed. Cl. 539 (Fed. Cl. 2001).

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Davis/HRGM Jt. Venture v. United States, 50 Fed. Cl. 539 (Fed. Cl. 2001). · cites it 2× “” 48 C.F.R. § 14.404-2 (a). The regulation also provides in relevant part that “[wjhen a bid guarantee is required and a bidder fails to furnish the guarantee in accordance with the requirements of the invitation for bids, the bid shall be rejected, except as otherwise provided…”

All Seasons Constr., Inc. v. United States, 55 Fed. Cl. 175 (Fed. Cl. 2003). · cites it 2× “” 48 C.F.R. § 14.404-2 (a). The regulation also states that “when a bid guarantee is required and a bidder fails to furnish the guarantee in accordance with the requirements of the invitation for bids, the bid shall be rejected, except as otherwise provided for in 28-101.”

Monument Realty LLC v. Washington Metro. Area Transit Auth., 540 F. Supp. 2d 66 (D.D.C. 2008). “See also 48 C.F.R. § 14.404-2 (a)(1998); Bean Dredging Corp.”

KSEND v. United States, 69 Fed. Cl. 103 (Fed. Cl. 2005). “To be deemed responsive, “a bid must comply in all material respects with the invitation for bids.”

Aeroplate Corp. v. United States, 67 Fed. Cl. 4 (Fed. Cl. 2005). “404-2, 48 C.F.R. § 14.404-2 (2004), and ANG’s inability to “definitively determine [if] the government would receive the penal amount [of the bid bond] if circumstances forced [it] to eollectf,] as the basis for the Guard’s rejection of plaintiffs bid as nonresponsive.”

Ryan Co. v. United States, 43 Fed. Cl. 646 (Fed. Cl. 1999). “” See also 48 C.F.R. § 14.404-2 (a) (1998). Hence, in determining responsiveness, the contracting officer juxtaposes the bid against the invitation for bids to determine whether the former conforms in all material respects to the latter.”

Honeywell, Inc. v. United States, 16 Cl. Ct. 173 (Ct. Cl. 1989). “” 48 C.F.R. § 14.404-2 (a) (1987). In instances where a bid deviates from the solicitation due to a minor informality or mere form, a bidder may be given an opportunity to correct the defect or omission.”

Excel Mfg., Ltd. v. United States, 111 Fed. Cl. 800 (Fed. Cl. 2013). “404-2, 48 C.F.R. § 14.404-2 (2012), the elimination of proposals which fail to conform to material requirements of a solicitation is likewise sanctioned by the FAR in negotiated procurements.”

ECDC Env't, L.C. v. United States, 40 Fed. Cl. 236 (Fed. Cl. 1998). “” 48 C.F.R. § 14.404-2 (a) (1997). Material or essential requirements are those terms that go to the substance of the bid.”

Lyons Sec. Servs., Inc. v. United States, 38 Fed. Cl. 783 (Fed. Cl. 1997). “48 C.F.R. § 14.404-2 (1). 41 U.S.C. § 15 and 31 U.”

Speakman Co. v. Caspar W. Weinberger, Sec'y of Def. Appeal of Minnco, Inc, 837 F.2d 1171 (D.C. Cir. 1988). “” 48 C.F.R. § 14.404-2 (d) (1986). The district court was troubled by the idea that Minnco was not truly bound by its bid; if Kelly had come to believe that the contract was no longer in its interest, he could have retained his government employment, and Minnco could thereby…”

McKnight Constr. Co. v. Dep't of Def., 85 F.3d 565 (11th Cir. 1996). “See 48 C.F.R. §§ 14.404-2 (g), 15.814. The Army determined that Lines 1 and 2 of McKnight’s bid were mathematically unbalanced because the amount listed in each line was significantly higher than that listed by other companies and the government’s own estimate.”

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