Bidder’s duty to seek clarification of ambiguities in the request for bids
Tuesday, December 23rd, 2008In a previous post we saw that an ambiguity can be used aggressively to throw out a bid even after contract award. There is more to the story. When a bid specification is ambiguous, the burden is not entirely on the specification drafter. If the protester had opportunities to seek clarification and failed to do so, then its interpretation will not be reasonable and the specification will not be ambiguous. In re: Protest of Andersen Consulting, SC Procurement Review Panel 1993-18 (http://www.procurementlaw.sc.gov/MMO/legal/decisions/93-18.pdf ). Andersen Consulting stated in their proposal that “several assumptions have been made.” This statement was not well-received by the Panel. The Panel repeatedly referred to the impropriety of making assumptions in light of the various steps available to get clarification. The procedures provided for in the Request for Proposals (RFP) included a pre-proposal conference, question and answer time, and the ability to ask about answers to previous questions published in amendments to the RFP. The Panel ruled that because Andersen “did not take the proper steps” to have its questions answered, it could not claim an ambiguity, and thus the requester’s determination that Andersen’s proposal was non-responsive was upheld.
