2024: The FAR, Federal Acquisiton Regulations - Part 14

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2024 Webinar Series
THE FAR
THE FAR – PART 14

2024 Webinar Series
THE FAR
FAR PART #14:
Sealed Bidding
SPEAKER: Michael Richard
FIRM: McCarter & English
EMAIL: mrichard@mccarter.com

When are Sealed Bids Used?
• FAR 6.401 states that sealed bids are to be used if:
(1) Time permits the solicitation, submission, and evaluation of sealed bids;
(2) The award will be made on the basis of price and other price-related factors;
(3) It is not necessary to conduct discussions with the responding offerors about their bids; and
(4) There is reasonable expectation of receiving more than one sealed bid.

When are Sealed Bids Used?
• Generally not used for OCONUS procurements. FAR 6.401.
• Generally only used for firm-fixed price contracts, although it may include FFP with an economic price
adjustment clause. FAR 14.104.
• May be used for classified work. FAR 14.103-1.

When are Sealed Bids Used? Examples
• VA SDVOSB set-aside to replace flooring in the surgical suite of a VA hospital in NY.
• Army small business set-aside to replace lighting systems at a Fighter Wing in NJ.
• USACE small business set-aside for construction of an operations building at Tinker AFB.
• DoT FHWA road small business set-aside for road construction in Trempeleau National Wildlife
Refuge.

Elements of Sealed Bidding – FAR 14.101
• The Government agency will publicize a clear, accurate and complete Invitation For Bids (IFB).
• The IFB should include all of the documents needed to bid the project.
• Bidders submit their bids by the due date.
• The Government evaluates bids without discussion on the basis of price.
• The Government will award the contract to the lowest responsible bidder.

Contents of the IFB. FAR 14.201
• The Schedule. FAR 14.201-2.
• SF 33 or SF 1447
• CLINs with descriptions
• Specifications
• Packaging and Marking
• Inspection and Acceptance
• Delivery/performance location
• Contract Administration Requirements
• Special Contract Requirements

Contents of the IFB. FAR 14.201
• Contract Clauses. FAR 14.201-3.
• Documents, Exhibits and Attachments. FAR 14.201-4.
• Representations and Instructions. FAR 14.201-5.
• Section K – Reps and Certs
• Section L – Instructions to bidders
• Section M – Evaluation Factors
• Appropriate sealed bidding specific FAR provisions found at FAR 52.214-3 through 52.214-35. FAR
14.201-6 and -7.

Contents of the IFB. FAR 14.201-8
• Price related factors include:
• Transportation and inspection costs
• Multiple award considerations
• Federal, state and local taxes
• Origin of materials

The IFB.
• Generally allow 30 days to respond to the IFB. FAR 14.202-1.
• Bid Samples and Descriptive Literature are generally not required unless the product cannot be
adequately described. FAR 14.202-4 and -5.
• Fax or email submission can be used. FAR 14.202-7 and -8.
• The IFB can be sent directly to prospective bidders but generally has to be publicized. FAR 14.203.

The IFB.
• The Government may hold a pre-bid conference before bid opening. FAR 14.207.
• The Government may amend the IFB as needed pre-opening, but the amendment must be provided to
all bidders. FAR 14.208.
• The Government may cancel the IFB pre-opening if there is no longer a requirement or it has changed
so much that amendment is not feasible. FAR 14.209.

Bids and Bid Opening
• A responsive bid is one that complies with the IFB in all material respects. FAR 14.301.
• Use the Government provided form(s), if any.
• Bids must be received by the exact time set for bid opening. FAR 14.302.
• If no time is set then it is 4:30 pm local time at the Government office. FAR 14.304.
• Bids may only be modified or withdrawn before the time set for bid opening. FAR 14.303.
• Bid opening may be postponed in emergencies or if the bid submission system fails. FAR 14.402-3.

IFB Cancellation FAR 14.404-1.
• The Government is supposed to accept the lowest responsive bid but . . .
• The Government may elect to reject all bids and cancel the IFB if there is a compelling reason:
• Specifications were not made available, were inadequate or ambiguous, or were not revised.
• The requirement no longer exists.
• The IFB failed to include all necessary price-related factors.
• The bids identify a cheaper product that will satisfy the requirement.
• Prices are unreasonably high or the Government could self-perform for less.
• Bidding was collusive.
• No responsive bids from responsible bidders.
• It is in the public interest.

Rejection of Individual Bids. FAR 14.404-2.
• The Government can reject an individual bid if:
• It is non-responsive because it fails to conform to the IFB’s essential requirements, the
specifications, or the delivery schedule.
• It includes conditions, contingencies, qualifications, limitations of liability, limitations of
government rights, or contingent pricing.
• The price is unreasonable or materially unbalanced.
• The bidder is suspended, debarred, or not responsible.
• The bidder fails to provide a bid guarantee, if required.
• The bidder’s assets to be used in performance were sold after bid opening.

More on Bids.
• Bids should not restrict the public disclosure of included descriptive literature. FAR 14.404-4.
• May be rejected as non-responsive.
• Bids may included all-or-none qualifications but these cannot be withdrawn. FAR 14.404-5.
• Bid can also limit its offer to a select group of requirements.
• Minor informalities may be waived. FAR 14.405.

Mistakes in Bid
• Contracting officer is obligated to examine the bids for mistakes and request bidder verification if
there is an apparent mistake in the bid. FAR 14.407-1.
• Clerical errors may be corrected by the contracting officer before award. FAR 14.407-2.
• Misplacement of decimals.
• Obvious mistakes in discounts, delivery or designation.

Mistakes in Bid
• The Government may allow correction of a substantive mistake in bid pre-award if there is clear and
convincing evidence of both the mistake and the intended bid. FAR 14.407-3.
• Absent such evidence the contracting officer may allow bid withdrawal or direct that the bid
cannot be altered or withdrawn.
• To prove entitlement to an upward adjustment of its bid price for a mistake discovered pre-award, a
contractor must show that the mistake was a product of a “a clear cut clerical or arithmetical error, or
misreading of the specification” and not an “error in business judgment.” Will H. Hall & Son, Inc. v.
United States, 54 Fed. Cl. 436, 440 (2002).

Mistakes in Bid
• Mistakes alleged after award are generally subject to the normal disputes process. FAR 14.407-4.
• To prove entitlement to reformation of the contract to address a mistake, the contractor must prove:
1. A mistake in fact occurred prior to contract award;
2. The mistake was a clear-cut, clerical or mathematical error or a misreading of the specifications and not
a judgmental error;
3. Prior to award the Government knew, or should have known, that a mistake had been made and,
therefore, should have requested bid verification;
4. The Government did not request bid verification or its request for bid verification was inadequate; and
5. Proof of the intended bid is established.
McClure Elec. Constructors, Inc. v. Dalton, 132 F.3d 709, 711 (Fed. Cir. 1997).

Award
• Award must be made within the time for acceptance specified in the bid based on price and price-
related factors only. FAR 14.408-1.
• If there is more than one award they must be made separately.
• A partial award must identify those parts of the IFB that are being awarded.
• Award can only be made to a responsible bidder with a reasonable price. FAR 14.408-2.
• There are special rules for the evaluation of the final price based on the inclusion of a prompt
payment discount or an economic price adjustment clause. FAR 14.408-3 and -4.
• If all bids are equal priority will be given to small businesses, but an award may be determined by
drawing lots. FAR 14.408-6.

2024 Webinar Series
THE FAR
THANK YOU FOR ATTENDING!
FAR PART #14:
Sealed Bidding
SPEAKER: Michael Richard
FIRM: McCarter & English
EMAIL: mrichard@mccarter.com

2024 Webinar Series
THE FAR
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2024: The FAR, Federal Acquisiton Regulations - Part 14

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2024: The FAR, Federal Acquisiton Regulations - Part 14