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.

The bid protest regulations of the Government Accountability Office (GAO) contain timeliness requirements that demand strict adherence by protesters. In cases where a protester first files an agency-level protest, any subsequent protest at the GAO must be filed within 10 calendar days of actual or constructive knowledge of the initial adverse agency action. In this regard, an adverse agency action refers to any action or inaction by the procuring agency that is prejudicial to the position taken by the protester in its agency-level protest. Notably, such an adverse action includes the opening of bids or the receipt of proposals. Therefore, when protesters file agency-level protests challenging the terms of a solicitation, and the agency does not take any corrective action or extend the date of proposal receipt, the passing of the date of proposal receipt is considered adverse to the protester and starts the 10-day clock for filing a GAO protest. In such cases, if the protester waits for the agency’s decision on the agency-level protest to file its GAO protest and more than 10 calendar days pass after the date of receipt of proposals, the protest is considered untimely under GAO rules.

Solicitations for federal contracts performed in foreign countries may include definitive responsibility criteria mandating compliance with the laws and requirements of the host nation. Such criteria are considered objective standards, included in the solicitation to evaluate the offerors’ ability to perform the contract. Procuring agencies may restrict competition using such requirements if the definitive responsibility criteria are reasonably necessary to meet the government’s minimum needs. If an offeror fails to meet specifically included responsibility criteria mandating compliance with foreign laws, it is deemed non-responsible and considered ineligible for an award. Of course, offerors may challenge solicitation terms requiring compliance with foreign laws as unduly restrictive of competition. In such cases, the procuring agency must establish that the solicitation terms containing the responsibility criteria are reasonably necessary to meet its minimum needs. While the agency’s explanation must withstand logical scrutiny to be considered adequate, an offeror’s disagreement with the explanation alone does not demonstrate that the agency’s reasoning is unreasonable. Ultimately, when solicitations for contracts involving performance in foreign countries incorporate definitive responsibility criteria based on foreign laws, prospective offerors must either comply with the terms of the solicitation or demonstrate that the relevant requirements are clearly unreasonable.

Contractors may recover their increased costs of performance attributable to government-supplied defective specifications, provided they are design specifications rather than performance specifications. However, most government-furnished specifications contain both design and performance requirements. To recover under the Spearin doctrine, a contractor must prove that the requirement adversely affecting its performance relates to an area in which the government has expressly described how to perform. On the other hand, the contractor will be denied recovery if the government can show that the dispute concerns requirements that granted the contractor discretion to develop its own performance methodology to achieve necessary contractual objectives. Since it is not always clear whether the government has supplied a design or performance specification, the contractor may have to determine the amount of discretion granted by the specification. Such an analysis must be conducted by viewing the contract in its entirety and assessing the contractor’s overall discretion, along with the obligations imposed by the specification, before the requirement may be categorized as a design or performance specification. In this regard, the relevant inquiry may be the degree to which the contractor can exercise its ingenuity to achieve the contractual objectives and its ability to select the appropriate methodology to do so.