"Caveat Vendor": Contract Specialist Cannot Override FAR and Invitation for Bids

Last week the GAO upheld the Department of Veteran's Affair's decision to reject a facsimile bid, even though the government official assigned to answer bidders' questions told the contractor at issue that facsimile bids were acceptable. See In re: Heath Constr. Inc., B-403417 (Sep. 1, 2010).

In Heath Construction, the invitation for bids (IFB) designated a specific Contract Specialist to answer bidders' questions, including those regarding the available methods of bid submission. In response, the specialist instructed a bidder that bids would be accepted via facsimile, and gave the bidder a fax number to use. The bidder then submitted a timely bid via facsimile, using the number provided. At the bid opening, however, the Contracting Officer rejected the faxed bid as noncompliant with the IFB instructions. Specifically, the IFB incorporated FAR § 52.214-5, Submission of Bids, which provides that facsimile bids would not be considered unless authorized by the solicitation. In this case, the IFB did not expressly authorize submissions via facsimile.

The contractor then protested the award, arguing that the government point of contact identified in the IFB expressly authorized facsimile bid submissions. The GAO denied the protest because the IFB itself did not authorize facsimile transmissions. The GAO observed that submitting a bid via facsimile gave a potential for competitive advantage to the bidder, because that bidder effectively would be allowed more time to prepare its bid. The GAO therefore concluded that any change to the authorized method of submitting bids would require a formal amendment to the IFB, and only the Contracting Officer was authorized to issue amendments. Thus, the Contract Specialist's statement that facsimile bids would be accepted could not serve to alter the original IFB provisions.

Heath Construction illustrates the principle that Contractors generally cannot rely on representations of government officials that are contrary to the Federal Acquisition Regulation and the solicitation, which define the process for awarding contracts. Contractors must carefully read solicitations, contracts and applicable procurement regulations to determine the proper procedures to follow in responding to solicitations and performing government contracts. If you have questions about the decision or responding to government solicitations, please contact Mark Blando at 612-236-0160 or [email protected]