During a procurement, public agencies must balance the desire to provide offerors with detailed information against the need to ensure that information is accurate and fairly distributed. Providing offerors with extensive information about a project and robust answers to offeror questions can improve pricing and mitigate the perception of various risks. However, providing inaccurate or contradictory information, or providing material information to some offerors but not others, could expose a procurement to a bid protest. The ATP Gov, LLC (B-422938; B-422938.2) case demonstrates that responses to offeror questions can become binding solicitation requirements and may restrict an agency's ability to make an award that is inconsistent with those responses.
ATP Gov, LLC (ATP) submitted an offer in response to an Air Force solicitation for military satellite terminal assemblies. During the procurement process, ATP submitted a question asking if proposed satellite terminals needed to be “certified at the time of proposal submission” to clarify the solicitation’s stated certification requirement. The Air Force responded with “Yes” in its published answer to the question. The Air Force then selected an offeror that proposed a less-expensive satellite terminal that was not certified in its proposed configuration at the time of proposal submission.
ATP submitted a protest to the U.S. Government Accountability Office (GAO). GAO sustained ATP’s protest, reasoning that the Air Force’s response to ATP’s question amended the solicitation to require certification of proposed satellite terminals at the time of proposal submission, thus rendering the winning offeror ineligible for award for failure to meet solicitation requirements. GAO recommended that the Air Force either reevaluate proposals and make a new award or issue a new solicitation that better reflected the Air Force’s needs. The GAO Bid Protest Annual Report to Congress for Fiscal Year 2025 details how the Air Force subsequently struggled to implement GAO’s recommendation due to concerns about affecting the project timeline and budget, drawing GAO’s criticism and a recommendation that Congress enact a private bill directing the Air Force to reimburse ATP for its proposal costs. Although the ATP case arose in the federal bid protest context, the broader lesson applies more generally: statements made during a procurement process may be treated as part of the solicitation and may influence how the procurement is later evaluated. Accordingly, agencies should treat published question-and-answer responses with the same level of care as formal solicitation amendments.
Public agencies can find it challenging to respond to offeror questions in a timely and accurate manner, given that offerors can submit a multitude of questions and such questions may be highly technical in nature. However, mistakes made due to insufficient time or capacity to develop appropriate answers can have expensive and time-consuming consequences that could imperil important projects.
Public agencies can mitigate the potential for mistakes during the question and answer process with the following actions:
- Ensuring all personnel drafting answers are familiar with solicitation documents
- Assigning questions to personnel with sufficient technical expertise to answer assigned questions
- Training all personnel providing answers on solicitation policies and procedures
- Allowing sufficient time for answers to be developed and reviewed for accuracy
- Amending solicitation documents for consistency with published answers
- Limiting the number of questions allowed per offeror
- Proactively identifying and correcting potential ambiguities and inconsistencies in solicitation documents
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