This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its November 2005 decision in Haworth, Inc., the U.S. Government Accountability Office (GAO) found that the Environmental Protection Agency awarded a contract to a bidder that failed to meet the required specifications. The case dealt with a Request for Quotations (RFQ) for the provision of furniture. The RFQ specified the following requirements:
The RFQ provided specific requirements for furniture, including the following for the stacking chairs to be used in break areas:
Stacking Capability: Stacking capacity shall be eight (8) units high, forty-eight (48) inches nominal above finished floor, or twenty (20) units high, seventy-three (73) inches nominal above finished floor on dolly.
The complainant alleged that the selected bidder’s proposed chairs did not stack up to the required specifications. While the Agency conceded that the selected chairs did not meet the specifications, it argued that it retained the discretion to select quotations notwithstanding such discrepancies since the RFQ included a term that stated that the “Contractor shall be considered deficient if the products do not match the requirements and if the contractor fails to identify the discrepancies.” The GAO disagreed, finding that this clause did not permit the acceptance of non-compliant quotations:
[W]e do not believe the language of the quotation preparation instructions supports the agency’s position that vendors could supply a noncompliant product. The language, by its terms, merely states that a schedule contractor’s quotation is deficient if its product does not match the requirements and the vendor fails to identify the discrepancies. It does not authorize a vendor to supply a noncompliant product.
Generally, where, as here, the solicitation contains a clause that permits a vendor to include in its quotation products that deviate from the specifications, the provision ordinarily allows a vendor to suggest changes that the agency could consider for possible revisions to its specifications, and is not a means by which an agency can freely disregard specifications.
The GAO therefore ordered the government to refrain from making any further orders under the improperly awarded contract and to re-tender.
This case illustrates that purchasing institutions should be careful in setting their threshold requirements, since they will typically be required to reject submissions that do not comply with those minimum standards.
