GAO: Contractors – Not the Agency – Must Know Applicable Local Laws

Agencies must draft solicitations and RFPs with enough detail that prospective offerors can determine if they are qualified to perform the work as well as be able to submit an educated offer.

But how much detail is the agency required to provide in a solicitation? In some cases, GAO has allowed fairly generic language to suffice.  

GAO recently considered the level of detail needed in Al Baz 2000 Trading & Contracting Company, W.L.C., B-416622.2 (2018). This protest involved a Navy solicitation for transportation services at various locations throughout the Middle East. On September 17, 2018, the Navy issued an amended RFP containing the following:

The Contractor shall, without additional expense to the Government, obtain all required permits, licenses, and authorizations to perform services under this contract and comply with all applicable local laws, regulations, and ordinances. Provide evidence of such permits and licenses to the Contracting Officer before services commence and at other times as requested by the Contracting Officer.

Al Baz protested, saying that the solicitation needed more detail. Instead of referencing “all applicable local laws, regulations and ordinances” language, Al Baz thought that the RFP should “expressly state that a UAE limousine license, in particular, is required.” The UAE, as with most large U.S. cities, is very strict on who may transport people to and from their destinations.

In denying Al Baz’s protest, GAO noted that an agency is only obligated to provide sufficient detail that allows offerors a meaningful opportunity to fairly respond. Agencies, however, are not required to describe each and every local law or requirement that contractors must follow. GAO recognized the limitations of government contracting officers when it said that officers “are not competent to pass upon the question of whether a particular local license or permit [is] required[.]” Knowing which licenses and permits are required is, instead, the responsibility of the contractor.

If this argument sounds familiar, you may recall Haley Claxton’s recent post where the government denied a bid protest because the protestor relied on the generic “industry standard” classification instead of detailing how the work would be performed. Here, GAO takes a similar approach by making a generalized statement in the RFP and relying on offerors to provide sufficient detail as to how they will satisfy the terms of the RFP.

Be cautious if you come across a solicitation or RFP with broad, sweeping language regarding local laws and regulations. While the government does not expect its officers to be familiar with these local laws and regulations, it does expect contractors to know, and abide by, them.