How Much is Enough?15 of 16 bidders on SCSU job didn't show enough effort

A recent decision was issued by the Chief Procurement Officer for Construction ("CPOC") concerning four contractors' bid protest of South Carolina State University's ("SCSU") Notice of Intent to Award a contract for the James E. Clyburn Transportation Research and Conference Center -Transit Research Center ("Project"). On this Project, the invitation for bid provided as a goal that SCDOT certified Disadvantaged Business Enterprise ("DBE") contractors or subcontractors would perform work equaling at least 20% of the value of the awarded contract. After receiving 17 bids that failed to meet that goal, SCSU requested that each bidder provide documentation substantiating their good faith efforts. Once a bidder submitted documentation that it was a SCDOT certified DBE performing at least 20% of the work, SCSU notified the 15 lower bidders that their documentation of efforts to achieve the DBE participation goal was determined to be non-responsive. Four contractors subsequently submitted their protests. The CPOC first dealt with the issue of whether federal regulations concerning DBE contractor requirements should be applied to this procurement. The CPOC noted that the project was being funded by a grant from the Federal Highway Administration. Thus, as a condition, SCSU agreed to comply with the FHWA Disadvantaged Business Enterprise Program in accordance with 49 C.F.R. § 26. Next, CPOC tackled the issue of whether SCSU committed error under the federal standards in determining the protestants' bids to be non-responsive for failure to show adequate good faith efforts to meet the DBE participation goal. The CPOC noted that "[t]he efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation." 49 C.F.R. § 26 App. A. Even though SCSU's approach to evaluate efforts was "overly stringent," CPCO found that no error was committed and the protest of each contractor was denied. It is interesting to note that CPOC prefaced its entire decision by stating that there was a "general feeling that the process was unfair," however because these were federal funds with federal requirements, "dissatisfaction with the state is misplaced."

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