It probably seemed like a good idea at the time. When 4Granite, Inc. submitted a bid in response to a Corps of Engineers IFB, 4Granite included a document not required by the government, titled “Company Information and F.A.R. and D.F.A.R. compliance statements.” In the compliance statement, 4Granite pledged to comply with the clause at FAR 52.212-1 and the clauses at FAR 52.212-3 through 5.
The problem? Those clauses weren’t in the IFB.
The FAR clauses in question apply to commercial item procurements. Unfortunately for 4Granite, the Corps was seeking construction work, not commercial items. When bids were opened, 4Granite’s was the lowest, but the Corps rejected it, saying that the “compliance statement” raised substantial doubt as to whether 4Granite would comply with the actual terms of the solicitation.
4Granite filed a bid protest with the GAO, but with no luck. In 4 Granite, Inc., B-406459 (Apr. 2, 2012), the GAO agreed with the Corps, writing that “the face of the document at issue indicates that 4Granite understood the commercial items clauses as applying to this solicitation.” The GAO found that these statements, plus other troubling language from the compliance statement, “rendered its bid, at best, ambiguous as to whether it was agreeing to the terms and conditions of the commercial item clauses or to the terms and conditions set forth in the solicitation.” The GAO denied 4Granite’s bid protest.
I don’t know why 4Granite decided to include the compliance statement, but if I had to guess, I would imagine that 4Granite had previously submitted the statement with a proposal for a commercial item contract. Perhaps when this IFB came along, some bright soul thought it would be a good idea to “throw in” the same statement—without stopping to think if it made sense in context. Instead of reassuring the agency that 4Granite would comply with the solicitation terms, the statement had the opposite effect, costing 4Granite the contract.
The lesson here is that when it comes to bids and proposals, the Government really does read what is submitted—even “boilerplate” statements like the one 4Granite submitted—and will hold contractors accountable for what they say.
Be careful out there.