GAO Affirms Army’s Decision to Disqualify Contractor From Bidding on Project for Missing OSHA Form

On November 20, 2012, the United States Government Accountability Office (“GAO”) upheld a decision of the United States Department of the Army, Corps of Engineers (“Army”) to reject a bid from a contractor for failing to provide forms required by the Occupational Safety and Health Administration (“OSHA”).  Johnson Controls, Inc. protested the Army’s decision to eliminate it from competing for an energy-efficient construction project worth up to $600 million based on Johnson Controls’ omission of required OSHA forms showing its history of work-related injuries and accident rates.  Johnson Controls argued that “Army irrationally assigned the deficiency to its proposal” because the “OSHA forms at issue were not required by the solicitation” and Johnson Controls “included information equivalent” to the OSHA forms “that demonstrated its superior safety records.”

The GAO, however, found that Johnson Controls’ submission did not include the required level of detail showing the severity of each work-related injury and corrective steps taken after each incident as required by OSHA’s regulations.  The GOA found that:

[t]he omission of the details of the firm’s history of work-related illnesses and injuries also left the [Army] without the type of verification of an offeror’s incidence rates that those details–found on the OSHA forms or otherwise–can provide. Accordingly, we have no basis to question the agency’s determination that the protester’s omission of the required OSHA safety information, under a factor to be evaluated by the terms of the RFP pertaining to a matter of paramount concern, rendered Johnson Control’s proposal unacceptable.

This case serves as an important reminder that contractors should make certain that they submit fully compliant materials when bidding on federal contracts.

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