When a government agency submits a request for proposal (“RFP”), the agency can make amendments and changes to the government solicitation requirements. The Federal Acquisition Regulation permits agencies to request revised government proposals, even where the original awardee’s price has been disclosed. Jackson Contractor Grp., B-402348.2 (2010).
Agency Discretion with Government Solicitation Changes
The agency has discretion to determine its needs and the best way to meet them and to take corrective action as needed in the Request for Proposal. Platinum Servs., Inc.; WIT Assocs., Inc., B-409288 (2014). Once the agency concludes that the government solicitation established an unjustified standard which would impair competition, changes to a Government Solicitation/RFP can be made.
The agency does need to tell the offerors of the change and request final proposal revisions. When changes are made and protests are brought, the GAO will not object to the absence or presence of a particular evaluation criteria, so long as the criteria used in choosing a contractor reasonably relates to serve the government’s best interests.
When Changes are Permissible in Government Solicitation/RFPs:
- If an evaluation factor is removed from consideration that was inconsistent with the RFP
- The agency informs the offerors of the changes and permits final bid proposal revisions
In a recent GAO bid protest, Platinum Services, Inc. and WIT Associates, Inc. both protested actions taken by the Department of the Navy under a Request for Proposal. The Navy took corrective action to amend the solicitation and deleted the corporate experience sub-factor and subsequently requested revised proposals. The GAO stated that the sub-factor deletion was not improper nor did it result in a defective solicitation. Because the Navy concluded that the sub-factor was inconsistent with its needs and goal of a fair competition, and without evidence to the contrary, the GAO will not intervene with an agency’s determination. See more information about the RFP process and the government’s decision to cancel its solicitation.
When Changes are not Permissible to the Government Solicitation:
- The change would make the requirements different from the initial requirements solicited
- Final proposal revisions are not permitted if there is a material solicitation amendment
As a general rule, agencies may not award a contract on a basis that is fundamentally different from which the basis for the competition was conducted. United Tele. Co. of the Northwest, B-246977 (1992). When there is a significant change to the government’s requirements, the agency should notify the offerors of the revised government solicitation requirements and allow them to submit revised proposals, as the Navy did in Platinum Services.
In another recent GAO bid protest, the record showed that the agency had previously determined its actual requirements were much different from the requirements it solicited and for which the offerors competed. System Studies & Simulation, Inc. B-409375.2 (2014). Because the offerors were not given an opportunity to compete for the agency’s actual requirements, and were not given a chance to revise their proposals, the protest was sustained. The GAO also recommended that the agency reimburse the offeror for the costs of filing and pursuing the protest, including reasonable attorneys’ fees, provided the protester’s certified claim for costs is submitted to the agency within 60 days after the GAO decision. 4 C.F.R. § 21.8(f).
To determine whether an amendment to a Government Solicitation/Request for Proposal is material, the GAO looks to see if the amendment imposes legal obligations on the contractor that was not contained in the original solicitation. MG Mako, Inc., B-404758 (2011). Determining materiality requires a look into the facts of each case, as there is no precise rule.
If you have recently submitted a bid proposal and the agency has made changes to the government solicitation requirements, you may have a claim. However, you must first meet the bid protest timeliness requirements.
Contact our bid protest lawyers at 1-866-601-5518 for a free initial consultation.