One of the simpler, but more prevalent, misunderstandings about government contracting lies in the concept of responsiveness. The only reference to this term in the Federal Acquisition Regulation (FAR) is found in Part 14, Sealed Bidding, in Paragraph 14.301, Responsiveness of Bids. Drawn from 10 U.S.C. § 2305(b)(3) and 41 U.S.C. § 253(b)(c), it states “to be considered for award, a bid must comply in all material respects with the invitation for bids. Such compliance enables bidders to stand on an equal footing and maintain the integrity of the sealed bidding system.” Although this citation is found in FAR Part 14, many contracting officers interpret it as applicable when using FAR Parts 12, 13 and 15 as well.
FAR Part 14.301(d) states that to be considered responsive, bids “should be filled out, executed, and submitted in accordance with the instructions in the invitation.” FAR Part 14.404-2 reinforces this assertion by stating that “any bid that fails to conform to the essential requirements of the invitation for bids shall be rejected.” However, the FAR provides additional latitude to the contracting officer to determine responsiveness under FAR Part 14.405 – Minor Informalities or Irregularities in Bids. This section defines these terms as “merely a matter of form and not of substance,” and explains their application in cases of “immaterial defect … that can be corrected or waived without being prejudicial to other bidders.” Immaterial defects only negligibly affect the overall price, quantity or delivery as compared to the total cost or scope of the acquisition. In these instances, the contracting officer can either permit the bidder to cure any deficiency, or can waive the deficiency, whichever is to the advantage of the Government.
The contracting officer may therefore determine a bid to be responsive even with minor irregularities, so long as that determination does not provide an unfair advantage to that offeror over any competing offerors. On the other hand, the contracting officer may also broadly apply the concept when receiving proposals. With ample competition, proposals not meeting the ‘letter of the law’ for submission instructions may be found non-responsive. Therefore, it always pays to conform to the specific instructions found in Section L of the solicitation. Always seek to clarify any uncertainties well ahead of the submission deadline; these methods and factors can be found in FAR Part 15.201 – Exchanges with Industry before Receipt of Proposals.
This blog was written by a guest author.