In 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.

It has been held that under these circumstances, the contractor has the right to submit an “equal” even though the specification omitted the words “or equal.” The Court noted that the government must omit or change the standard-of-quality language where it wants to require the use of only one product. The point here is that specifying only one product can be limiting upon competition and can drive the price up.

Sometimes a specification is written around a proprietary product. For example, a specification may be written with such descriptive words that only one product can be used, even though it has not been identified by brand name. In such a circumstance, a Federal Appeals Court held that a proprietary specification should be treated as though the product that was identified by its brand name, giving the contract to the right to submit an “equal” product even though no “brand name” was used in the specification. To hold otherwise would allow the government to subvert the competitive bidding process by writing specifications “around brand-name products.” Construction Law Handbook section 7.02 [C][7][a][iii].

Once in a while, a contractor may encounter a brand name or equal specification, but later find that the specified brand name product is unavailable. The resolution of these cases involves a consideration of the contractor’s knowledge of availability at the time of bidding and the balancing of fault between the government and the contractor. Therefore, when a project is bid where the time between the bid opening and the date the product is used is lengthy and the manufacturer of the product goes out of business, and the contractor would have had no way of predicting this turn of events, the subcontractor should be allowed to submit an “or equal” product.