GAO: Oral Advice Doesn’t Alter Solicitation Terms

In negotiated procurements, contractors sometimes enter into discussions with agency representatives.  But contractors must understand that oral discussions don’t trump a solicitation’s terms.  If a government solicitation includes clear and specific requirements, the agency’s subsequent oral advice to the contrary doesn’t waive or alter the solicitation–a rule confirmed, to one contractor’s detriment, in a recent GAO bid protest decision.

In B&S Transport, Inc., B-402695 (July 9, 2010), the GAO reaffirmed its longstanding rule regarding the effect (or rather, lack thereof), of oral advice provided by agency officials during discussions.   In that case, the agency issued a solicitation for the procurement of bituminous coal.  Each line item contained specifications for the type of coal required.  The solicitation stated that before submitting an offer, each offeror was to have its coal tested at a U.S. Army laboratory.

B&S Transport, Inc., submitted an offer, after having its coal tested at the Army facility.  During discussions, the agency asked B&S to re-test some of its coal.  According to B&S, it asked the agency whether it could perform the re-testing at a commercial facility instead of the Army facility, and the agency answered “yes.”  B&S retested the coal at a commercial and submitted its best and final offer using the commercial test results.  The agency subsequently made award to another offeror, telling B&S that its commercial testing did not comply with the solicitation.

The GAO denied B&S’s bid protest.  It wrote “where, as here, an RFP provision is unambiguous, an offeror may not rely on oral advice from agency officials that is contrary to the clear terms of the RFP.”  Assuming that the agency had orally indicated that B&S could use a commercial testing facility, B&S “could not reasonably rely on such advice as it would have been contrary to the clear terms of the RFP.”

Discussions can be a useful exercise and, done right, may help contractors correct weaknesses in their proposals and increase their chances of award.  But remember that the ground rules of each evaluation are set by the solicitation and any amendments—despite any oral advice or direction to the contrary given in discussions.

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