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.

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.

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.