When an RFP is missing an attachment or information, contractors simply should not look the other way. This is the lesson of CAE USA, Inc., ASBCA No. 58006, where the ASBCA denied a contractor’s appeal due to its failure to inquire about missing information in an RFP before preparing and submitting its bid.
Pursuant to FAR 22.1008-2 and in compliance with Service Contract Act of 1965, 41 U.S.C. § 6707 (c)(1), the contracting officer (the “CO”) provided all bidders with a copy of a collective bargaining agreement (the “CBA”) that would apply to the contract. The CBA indicated that the contractor’s employees would participate in a corporate benefit program, but did not provide specific details. The CBA was missing certain relevant attachments but, rather than asking for that information, CAE USA, Inc. (“CAE”) made certain general assumptions about fringe benefits when calculating its proposed rates. After award, the CO informed CAE that the missing attachments in the CBA required the payment of additional benefits, which CAE had to pay. CAE submitted a claim for the cost of these additional benefits, which the CO denied, and CAE appealed to the ASBCA.
Although the ASBCA noted that “[t]here can be no reasonable doubt that pursuant to FAR [22.1008-2], it was the responsibility of the CO to provide a complete CBA,” it found that “[i]t is equally without doubt that CAE knew the CBA did not contain the complete information necessary to determine what the full wage and fringe benefit amounts necessary to comply with the SCA [Service Contract Act] and FAR were.” Because CAE chose to “submit an offer on the basis of its own assumptions, without notice to the government of the incompleteness of the CBA or what CAE’s assumptions were, it cannot now be heard to complain that its assumptions were not correct.” (The ASBCA analogized to those cases “dealing not with contract provisions that are difficult to interpret due to an ambiguity, but those that have relevant information missing.”) Further, the ASBCA determined there was no language in the SCA or the FAR that would “require the government to become the indemnitor” for differences in the rates resulting from the missing attachments, or to be a “guarantor of the correctness of CAE’s assumptions when [CAE] failed to inquire regarding these assumptions.”
This decision demonstrates the importance of (i) carefully analyzing an RFP to verify that all relevant attachments have been provided and (ii) clearly stating any assumptions on which the bid is based. Although these types of cases are highly fact dependent, the principals of CAE USA would be applicable to any bid or proposal.