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39 Procurement Law. 1 (2003-2004)

handle is hein.journals/procurlw39 and id is 1 raw text is: 















Agency Oral Explanations of Solicitations: The

Divergent Approaches and Proposed Solutions

STEVEN W FELDMAN


                           When preparing their bids or
                           proposals, prospective con-
                           tractors often have concerns
                           and questions about the
                           acquisition.' Vendors have a
                           significant incentive to
                           request solicitation clarifica-
                           tions from agencies. First, the
                           agency's input will improve
                           the offeror's chances for
                           receiving an award when the
                           offeror obtains a better
understanding of the solicitation. Second, offerors take
great legal risk in not communicating with agencies before
bid or proposal submission. Case law holds that offerors
have a duty of inquiry regarding solicitation discrepancies
or ambiguities. A vendor must consult with government
representatives to seek resolution of obvious and significant
solicitation deficiencies and, failing that obligation, a com-
plainant in a protest or dispute cannot rely on the maxim
that such ambiguities in solicitations and contracts are
construed against the agency as the drafter.2 Along the
same lines, a protester will waive a protest ground regarding
an apparent solicitation impropriety if it first challenges
the deficiency after the closing date.'
   Agencies and offerors often address solicitation issues
orally. Thus, for example, the contracting officer and an
offeror in a telephone conversation might clarify the
technical specifications in a request for proposals (RFP)
or an invitation for bids (IFB). A second example is
where the agency conducts both oral and written discus-
sions during pre-award negotiations under an RFP Also,

Steven W. Feldman is an attorney-advisor for the U.S. Army Engineer-
ing and Support Center, Huntsville, Alabama. This article represents
the author's personal opinions and does not represent the views of the
Department of the Army. This article was written in honor of the
author's father, William Feldman.


the agency may conduct a pre-bid or pre-proposal confer-
ence to answer the vendors' written and oral questions
about the solicitation. The Federal Acquisition Regula-
tion (FAR) approves these exchanges. FAR 15.201(a)
states that government and industry personnel in negoti-
ated procurements are encouraged to engage in
exchanges of information about the acquisition from the
earliest identification of a requirement through the
receipt of proposals.
   Occasionally, the agency's pre-award oral advice will
contradict or create an ambiguity concerning the solicita-
tion. When the agency giving this advice fails to issue a
confirming RFP or IFB amendment, offerors have a
dilemma. On one hand, experienced offerors realize that
the agency might disavow the conflicting instruction in a
later protest or dispute. Even where the offeror asks the
agency to issue an amendment, the agency might not
honor the request. On the other hand, offerors take the
gamble that the agency will implement its conflicting
oral interpretation. Where the offeror discharges the duty
of inquiry and follows the agency's advice, it justifiably
will feel mistreated (in the hopefully rare instance) where
the government later disavows the oral interpretation.
   This article will summarize the rules governing the
                                 (continued on page 18)



  Chair's Column                                 2
  Enforcing Illegal Contracts                  3
  USAID & Iraq Contracts                        10
  Teaming Agreements                            13
  Committee News                                16
  Section Honorees                              26

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