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While this was certainly the World Series of bid protests, as noted in the previous posting, the process undertaken by Boeing and its team of attorneys is the same required by construction contractors in their protests of most federal procurements.

While the GAO recommendation is not determinative as to who will eventually be awarded the government contract, it provides Boeing another shot to obtain the enormous procurement. 

The GAO issued a full 69 page decision which is currently subject to a protective order because it contains proprietary and source sensitive information.  A copy of the GAO's preliminary statement regarding its decision can be found here.

In most instances the GAO and the Office of the Comptroller General of the United States consider protests to the award of federal government construction contracts.

The PC-based switch gear supplier filed a bid protest contending that the specifications were unduly restrictive, because the specs excluded the use of PC-based switch gear. The hearing officer denied the protest on the grounds that the agency had acted within its discretion.

The Alaska Supreme Court affirmed the hearing officer's decision. The contractor which had anticipated furnishing the PC-based switch gear argued that the agency made the wrong decision with regard to the relative merits of the PLC and PC systems. The Court held that the protestor's "arguments largely missed the point: the question at issue here is not whether the agency made the right decision in preferring one operating system over the other or in deciding to buy now rather than later; instead, the question is whether the agency had the authority to specify the system it wanted and, if so, whether it had a rational basis for its ultimate choice."

In a case in Georgia, the general contractor (APAC) incorporated a subcontractor's (Coastal) bid to perform drill shaft foundation work into its bid to the Georgia Department of Transportation (GDOT).

After APAC had signed a prime contract with GDOT, APAC submitted a written subcontract to Coastal that contained terms and conditions different than those in the subcontractor's bid (the general contractor sought to assign the risk of delay and subsurface conditions to the subcontractor).  The subcontractor refused to sign the subcontract.  APAC filed a lawsuit against Coastal alleging "promissory estoppel" asserting Coastal knew it would be expected to enter into an APAC standard subcontract, the terms of which would differ from the Coastal bid terms.

APAC asserted that tendering the subcontract should be considered acceptance, even though the terms of the APAC subcontract were different that the Coastal quote.  Promissory estoppel provides, that a subcontractor who makes a bid to a general contractor by itself to perform according to its promise because the general contractor has relied on that promise in making its own bid.

Promissory estoppel does not however allow the general contractor to reopen bargaining with the subcontractor and at the same time claim a continuing right accept the original offer.  The court found that promissory estoppel was inapplicable here because APAC's tender of a subcontract which was different than the terms of the Coastal bid quote, amounted to a counteroffer, and APAC forfeited its right to hold Coastal's bid open, when it counteroffer with its form subcontract, seeking to transfer the risk of subsurface conditions and delays to the subcontractor.

APAC could have preserved its promissory estoppel right if it had accepted Coastal's bid unconditionally.  It appears that APAC was asleep when it failed to realize that in addition to the scope of work and dollar value information that Coastal had provided at bid time, Coastal had excluded the risk of differing site conditions from its quote.