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An agency’s oral advice, given at a pre-proposal conference, did not amend the solicitation or legally bind the agency.

In a recent bid protest decision, the GAO reiterated that offerors rely on oral advice from agencies at their own risk–particularly when the oral advice in question appears to contradict the plain language of the solicitation.

GAO’s decision in Technology and Telecommunications Consultants, Inc., B-415029 (Oct. 16, 2017) involved an Air Force solicitation seeking IT services in support of the Air Command Personnel Recovery Division.  The solicitation was issued as a competitive 8(a) set-aside under the GSA’s 8(a) STARS II GWAC.

The solicitation provided a list of tasks that the awardee wold be expected to perform.  Under one of these tasks, the solicitation stated that the awardee would be expected to provide support to the Air Force Special Operations Command at Hurlburt Field, Florida.  However, the solicitation did not state that offerors were required to propose an employee specifically dedicated to AFSOC support.

Before the due date for proposals, the agency held a pre-proposal conference.  During the conference, attendees asked about the AFSOC position.  The Contracting Officer’s Representative said that the “AFSOC position is still funded and yes, it is still a requirement.”

After evaluating proposals, the agency announced that the task order had been awarded to a company named Constellation West.  The incumbent contractor, Technology and Telecommunications Consultants, Inc., filed a GAO bid protest challenging the award.

TTC argued that CW’s proposal was technically unacceptable because CW failed to propose an employee specifically dedicated to providing AFSOC support.  TTC contended, in part, that the statement made by the COR at the pre-proposal conference demonstrated that the Air Force required an employee specifically dedicated to this function.

“Contrary to TTC’s position,” the GAO wrote, “our cases have frequently concluded that offerors rely upon oral advice from an agency at their own risk.”  Oral advice “does not operate to amend the solicitation or otherwise legally bind the agency.”

This is “particularly the case, where, as here, the oral advice directly conflicts with the plain language of the solicitation.”  The GAO concluded: “TTC cannot use the erroneous oral advice effectively to revise the solicitation’s plain language in order to support its interpretation.”

The GAO denied TTC’s protest.

Pre-proposal conferences (and similar events) can be very helpful for prospective offerors.  But as the Technology and Telecommunications Consultants protest demonstrates, the oral advice provided at these events cannot modify the terms of the solicitation, or otherwise legally bind the agency.  Listener, beware.
This content originally appeared on SmallGovCon

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