In sealed bidding procurements, an invitation for bid (IFB) provides all non-price terms and conditions of the prospective contract. Bidders responding to IFBs must acknowledge its terms, including all amendments. Failure to acknowledge an amendment may result in the bid being found nonresponsive if the amendment is deemed material to the IFB. An amendment is considered material if it imposes legal obligations on the bidders that were not contained in the original solicitation. Furthermore, an amendment is material if it has more than a negligible impact on price, quality, or delivery. If a bidder fails to acknowledge a non-material amendment, the procuring agency may waive the lack of acknowledgment as a minor informality. Alternatively, if it is more advantageous to the agency, the bidder may be given an opportunity to cure the deficiency and acknowledge the non-material amendment. However, a lack of acknowledgment of a material amendment is not waivable because, without the acknowledgment, the bidder is not legally obligated to meet the government’s needs even after the government accepts its bid. Thus, an awardee’s failure to acknowledge a material amendment is a protestable issue post-award. Notably, whether an amendment is material is a fact-specific inquiry resolved based on the circumstances of each case.

Under the Federal Acquisition Regulation (FAR) limitations on subcontracting clause, small business contractors may not subcontract out more than a specified percentage of work to non-similarly situated entities, depending on the NAICS code assigned to the contract. For instance, the clause at FAR 52.219-14 obligates the contractor not to pay more than 50% of the amount paid to it by the government for the performance of services and supply contracts to non-similarly situated entities. In this regard, a similarly situated entity is one that, like the prime contractor, possesses the necessary socioeconomic designations required by the contract. Notably, a procuring agency’s judgment on whether a contractor can comply with the limitations on subcontracting clause is a question of responsibility, which is reviewed by the Small Business Administration (SBA). Meanwhile, the contractor’s actual compliance with the clause is a matter of contract administration. Thus, both these issues are not considered by the Government Accountability Office (GAO) under its bid protest function. However, where a proposal, on its face, should lead an agency to conclude that an offeror has not agreed to comply with the limitations on subcontracting clause, the matter is of the proposal’s responsiveness or acceptability. The GAO reviews such matters to determine whether a proposal affirmatively takes an exception to the limitations on subcontracting or otherwise demonstrates that the offeror does not intend to comply with them.

Government contracts often include first article testing (FAT) requirements to ensure the contractor can supply a product that meets the contract requirements for acceptance. Such contracts incorporate the clause at FAR 52.209-3 (Contractor Testing) or FAR 52.209-4 (Government Testing) to impose FAT requirements on the contractor. Both clauses allow the government to waive the FAT requirements where the contractor has previously furnished supplies of identical or similar items that the government has accepted. An improper waiver of the FAT requirements that is inconsistent with the relevant FAR clause may be grounds for protest. In such protests, it is the procuring agency’s burden to establish that its decision to waive the FAT requirements was reasonable and in accordance with applicable procurement law and regulation. In addition to prior successful performance, if the agency can demonstrate that the contractor in question previously received FAT approval for the same items being procured, the Government Accountability Office (GAO) will typically not sustain the protest challenging the FAT waiver, unless the protester can present countervailing evidence that the item being supplied will not meet material solicitation requirements.