The government provides contractors with a variety of information during the solicitation process before a contract is awarded. Such information may be furnished through pre-award conferences, questions and answers, solicitation attachments, specifications, diagrams, drawings, contract provisions, etc. When the government misstates material facts during the contract formation process, it may later be liable under express provisions of the contract or for breaching an implied warranty that it furnishes correct information. In this regard, when the government provides incorrect representations and directs or expects prospective offerors to base their contract pricing on those misrepresentations, the government is responsible for any losses the contractor suffers as a result of its reliance on that information. In other words, when the government instructs offerors to base their pricing on data it furnishes, it assumes responsibility for ensuring that the data accurately reflects the conditions the contractor will encounter during performance. In such cases, as long as the contractor can demonstrate that the government's information was incorrect, it need not prove the government's intent to deceive or bad faith. Furthermore, the contractor may also not need to prove that the incorrect information was inadequately or negligently prepared.

Procuring agencies must make an affirmative determination of contractor responsibility before awarding federal contracts. While a responsibility determination is necessary for all successful offerors, a non-responsibility determination that precludes a small business from receiving an award must be referred to the Small Business Administration (SBA). Specifically, SBA regulations require contracting officers (COs) to refer to the SBA for a Certificate of Competency (COC) determination, all small businesses deemed ineligible for award on a non-comparative basis under a responsibility-related factor, such as past performance or key personnel qualifications. In this regard, non-comparative responsibility factors are evaluated on a pass/fail, go/no-go, acceptable/non-acceptable or another similar basis. Once the referral is made, the SBA informs the small business of the non-responsibility determination and offers it the opportunity to apply for a COC. The SBA then typically reviews COC applications within 15 days. If an agency improperly fails to refer a small business for a COC determination, the small business may file a bid protest at the Government Accountability Office (GAO), alleging violation of the SBA’s COC procedures.

The government often adds products and services to its existing contracts by executing contract modifications and amending the relevant terms. Under the General Services Administration (GSA) Federal Supply Schedule (FSS) program, a vendor’s schedule contract may be modified to add product or service offerings and revise its price list. Such modifications are generally considered matters of contract administration and therefore may not be challenged in a bid protest. However, an exception to this general rule may arise under the Competition in Contracting Act’s (CICA) full and open competition requirements, which remain applicable notwithstanding the FSS program’s streamlined acquisition procedures. Under this exception, a protester’s allegations that a contract modification changes the work beyond the scope of the original contract place the protest within the Government Accountability Office’s (GAO) bid protest jurisdiction. This is because the additional work covered by the modification is otherwise subject to CICA’s competition requirements, unless a valid determination is obtained that deems the work appropriate for procurement on a sole-source basis. However, as with any protest, the protester must satisfy the requirement of being an interested party. Notably, prospective suppliers or subcontractors who supply competing products or services to FSS vendors may not raise such protests, as their economic interests are not considered sufficiently direct to confer interested party status.

The government may provide performance workload estimates during the solicitation phase to assist offerors in preparing their bids or proposals. If due care is not exercised in preparing these estimates and the contractor relies on them, the government may be liable for breach of contract. Due care requires the government to base its estimates on all relevant information reasonably available at the time. If the government fails to base its estimate on the latest available data or is otherwise negligent in preparing it, the contractor may recover any resulting damages. To prevail in such a claim, the contractor must show that it is more likely true than not true that the government’s estimate, on which it relied to prepare its offer, was inadequately or negligently prepared. In a typical case, the contractor must prove that the government’s negligent estimate misled it into submitting an unfairly low bid. The contractor may also need to demonstrate that the government had exclusive control over the information used in developing the estimate, which was unavailable to the contractor from other sources.

In Agility Defense & Government Services, Inc. v. United States, 847 F.3d 1345 (2017), the United States Court of Appeals for the Federal Circuit held that the government was in breach of contract because it negligently estimated its requirements and the contractor relied on the government’s estimates. The Defense Logistics Agency (DLA) awarded the underlying contract for the disposal of surplus military property at Defense Reutilization and Marketing Offices (DRMOs) upon the military’s departure from an area of operations. While the DLA usually handled the requirement internally, it became aware of planned troop movements, which were expected to cause a surge in workload that it was not equipped to handle without contracting out the requirement. During the solicitation phase, DLA issued several amendments relating to anticipated workload and costs. Under one such amendment, DLA provided offerors with a website that showed historical workload, including the number of military property items received for processing and the amount of scrap processed for each DRMO. In a later amendment, the DLA provided offerors with a workload chart that projected a stable workload for the first two years of the contract, followed by a progressive decline of 75%, 50%, and 30% in the option years three to five, respectively. The government also provided the contractor a workload baseline for each DRMO which utilized the same historical data.