Proposals that fail to satisfy the material terms of a solicitation for a negotiated procurement are considered unacceptable and may not form the basis of an award. It is well-established that it is the offeror’s responsibility to submit an adequately written proposal in accordance with the solicitation’s terms that contains all the required information. Despite this obligation, offerors may inadvertently omit necessary information from their proposals. Similarly, proposals may inadequately address or otherwise fail to convey information required by the solicitation. In such cases, the offeror risks adverse evaluation by the procuring agency or elimination from the competition altogether. Protests challenging the agency’s adverse decisions in such cases can have a low success rate because the Government Accountability Office (GAO) does not reevaluate proposals or substitute its judgment for that of the agency but only ensures the reasonableness of the evaluation against the stated evaluation criteria and applicable procurement laws and regulations. Contractors should also be mindful that their disagreement with the agency’s judgment alone is insufficient to establish the unreasonableness of the evaluation. Furthermore, while the agency may elect to seek clarifications, when a solicitation contemplates award without discussions, providing an opportunity for offerors to resolve even minor or clerical errors in their proposals is firmly within the agency’s discretion, as there is no automatic right to clarifications.

Procuring agencies have significant discretion when repurchasing products or services after a termination for default under a substitute contract, since the federal statutes and regulations that govern standard procurements do not strictly apply to reprocurements. As the default provision applicable to fixed-price contracts, Federal Acquisition Regulation (FAR) 49.402-6 governs most reprocurements. For commercial products or services purchased through the General Services Administration (GSA) Federal Supply Schedule (FSS) program using FAR Part 8 procedures, FAR 49.402-6 serves only as guidance unless it conflicts with specific commercial item acquisition procedures. Notably, FAR 8.406-4(a)(1) mandates compliance with FAR 12.403 for FSS commercial item acquisitions, which in turn grants the procuring agency all remedies available to commercial buyers when conducting a reprocurement. The government’s preferred remedy after a default termination under the FAR is to acquire similar items from another contractor. The government may reprocure from the next-lowest-priced, qualified offeror as long as there is an ongoing need for the products or services and only a short time has passed between the original competition and the termination. In conducting the reprocurement, the agency must still provide competition to the maximum extent practicable, and the period of performance under the reprocurement must not exceed the term remaining on the terminated contract. Furthermore, for GSA FSS reprocurements, the agency is only required to acquire items similar to those in the original solicitation, not necessarily identical.

Following the award, the government issues a notice to proceed directing the contractor to begin contract performance. The contract or the notice of award may provide a specific date for issuing the notice to proceed, in which case the government has an express duty to issue the notice to proceed by that date. If a date of issuance is not specified, the government still has an implied duty to issue the notice to proceed within a reasonable time. Claims adjudicative forums have held that damages for the government’s unreasonable delay in issuing the notice to proceed may be recovered under the suspension clause. Such damages may include unabsorbed overhead, which are indirect costs that can no longer be charged through the application of the contractor’s overhead rate to its direct costs due to the delay in performance. As set forth in the seminal Armed Services Board of Contract Appeals (ASBCA) decision issued in 1960, the Eichleay formula is the exclusive method for calculating unabsorbed overhead damages due to a period of government-caused delay when contract performance has commenced. However, there may be situations in which the contract is terminated for the government’s convenience without commencement of performance following a period of government-caused delay in the issuance of the notice to proceed. In such cases, while the Eichleay formula may not be used to determine the contractor’s unabsorbed overhead damages due to a lack of allocability, the contractor’s recovery is not altogether barred.

Generally, when a government contract solicitation sets forth requirements in specific terms, interested offerors are required to meet them precisely. This is especially true for material requirements which must be satisfied in order for an offeror’s proposal to be considered technically acceptable for award. However, in certain limited circumstances the procuring agency may relax or waive material solicitation requirements in making an award, if the proposed solution meets the government’s needs and there is no prejudice to the other offerors. In such cases, it is insufficient for a protester seeking to challenge the government’s waiver of material solicitation requirements to merely show that it would have been next in line for award, or that the awardee would have been unsuccessful but for the waiver. Rather, the existence of competitive prejudice is established by demonstrating that the protester would have altered its proposal to its advantage or could have done something different to improve its chances for award had it been afforded the opportunity to submit a response to the changed solicitation requirements.

In B-423821.2; B-423821.3, a decision issued on April 20, 2026, the Government Accountability Office (GAO) denied a protest challenging the agency’s waiver of material solicitation requirements in making the award because the protester failed to demonstrate competitive prejudice. The U.S. Army Corps of Engineers (USACE) issued a $43,712,124 task order under an indefinite-delivery, indefinite-quantity (IDIQ) contract for operation, maintenance, and facility management services at various Defense Health Agency (DHA) facilities in Germany, Belgium, and Italy. For the portion of the work to be performed in Italy, the request for proposals (RFP) required offerors to register for an anti-mafia screening white list. During discussions, the USACE reiterated the white list requirement, explaining that offerors were required to initiate the registration process with a local government official known as a prefetto before submitting their proposals. Prospective offerors were advised that they had to include evidence of having initiated the registration process with their proposal submissions.