“For government contractors, trying to predict how COVID-19 might affect a government project can be extraordinarily challenging task. One bidder recently attempted to provide some clarity by stating, in its bid, that COVID-19 was a ‘force majeure event’ and that the bidder would be entitled to extra time if COVID-19 affected the project.
Unfortunately for the bidder, its effort failed: the agency rejected the bid for improperly exceeding the scope of a relevant FAR clause. The GAO then confirmed that the agency had acted properly….”
“The GAO wrote that all bids must be ‘responsive.’ The GAO explained that ‘the test for responsiveness is whether a bid offers to perform the exact thing called for in an IFB, so that acceptance of the bid will bind a bidder to perform in accordance with all of the terms and conditions of a solicitation without exception.’ If a bidder ‘attempts to impose conditions that would modify material requirements of an IRF, limit its liability to the government, or limit the rights of the government under any contract clause, then the bid must be rejected.’
In this case, the GAO wrote, while FAR 52.249-10(b) lists epidemics and quarantine restrictions as possible causes of excusable delay, the language of the provision inserted in the protester’s bid specifically lists ‘COVID-19’ and ‘any other similar disease, epidemic, or pandemic event.’ The GAO wrote that the FAR clause clearly does not include these specific terms as examples of an unforeseeable cause of delay…”
“For contractors, operating in a pandemic environment–and trying to predict how future COVID variations or other diseases might affect their work–can be extraordinarily challenging. But as the American Mine Services case demonstrates, bidders must be careful when trying to guard against such risks in their bids so that those bids remain responsive…” Read the full article here.
Source: Agency Properly Rejected Bidder for Listing COVID-19 as a “Force Majeure” Event – By Nicole Pottroff, December 13, 2021. SmallGovCon.
