US Court of Federal Claims

Seabee Construction, Inc. v. United States

Case no.: 26-506
Date filed: July 2, 2026

The Court of Federal Claims has ruled that a disappointed bidder cannot replace a low bidder if the protester’s bid contained the same deficiency of which it complained. A protester in that situation has not suffered any prejudice.

The Department of Veterans Affairs, National Cemetery Administration (NCA) issued an invitation for bids (IFB) for a fixed-price contract to expand the Snake River Canyon National Cemetery in Buhl, Idaho. The IFB included the contract specifications stating the mandatory experience and certification requirements for installers of burial crypts and precast concrete columbarium units. The specifications for the latter said the qualifications could be provided “prior to the commencement of work.”

An interested bidder requested information on submitting installer qualifications. NCA responded with Amendment 0001 to the IFB: “The requirements for installer qualifications are firm and must be met at the time of contract award…. Bidders are expected to ensure compliance with all solicitation requirements prior to submission and during contract performance.”

Alpine Construction Management (ACM) submitted the low bid. Seabee Construction Inc. submitted the second low bid. Neither bid disclosed installers or installer qualifications. NCA conducted a responsibility evaluation of ACM. This included a request for the installers of its proposed burial crypt and columbarium unit, along with details of their experience.

ACM identified subcontractors, but said that due to time constraints, it had not gathered their qualifications. ACM gave NCA permission to contact them directly. A new contracting officer had come onto the project for NCA. Under pressure to secure a contract within days, he made a positive responsibility determination and noted that ACM had assured NCA that the subcontractors would be competent and qualified.

Seabee Construction protested that Amendment 0001 had transformed the subcontractor experience and certification information into a matter of bid responsiveness. Seabee contended NCA had conducted improper discussions after bid opening and then accepted a nonresponsive bid.

The US Court of Federal Claims said Amendment 0001 had to be read in the context of the question that prompted its issuance. A prospective bidder asked, “If the awarded contractor is unable to provide an installer that meets the required qualifications: What are the contractual consequences?” The response assumed subcontractor experience and certification information would be furnished after contract award.

“Amendment 0001 did not make the installer requirements a matter of responsiveness—whether due with bid submission or upon request of the contracting officer after bid opening. . . . ACM’s bid was responsive.”

The court also noted that Seabee’s bid failed to identify subcontractors and lacked information on installer experience and certification. Consequently, Seabee had no right to challenge ACM’s failure to include that information.

“Critically, even if Amendment 0001 rendered the installer requirements a matter of responsiveness such that they were due with the bid submission, Seabee has waived any objection to ACM’s hypothetically nonresponsive bid.… If Amendment 0001 required bidders to identify their installers and provide their installers’ experience and certifications as part of the bid submission process, Seabee has failed to demonstrate prejudice because its bid committed the same ‘error’ as ACM’s.”

While this rule is based on the legal concept of prejudice, it is consistent with common sense. If the low bid was fatally flawed and the second low bid contained the same flaw, what is the point of a protest by the second low bidder?

Subcontractor qualifications generally relate to bidder responsibility and contract compliance, but can be expressly converted into a matter of bid responsiveness. This solicitation should have been drafted more artfully to make it clear that was not the intent here.

Participants:
For Seabee Construction: Jonathan A. DeMella; Seattle, Washington
For the government: Patrick S. Angulo; Washington, DC
For Alpine Construction Management: Dirk D. Haire; Washington, DC
Before: Judge Eric G. Bruggink
Opinion by: Judge Bruggink
Outcome: Low bidder’s motion for judgment on the record granted

Source: Attach the complete opinion or decision PDF here.