Government Contracting Database

The concept of equal competition is embodied in the Federal Acquisition Regulations which provide, at FAR 14.101, “Elements of Sealed Bidding,” as follows:

a) Preparation of invitations for bids. Invitations must describe the requirements of the government clearly, accurately, and completely. Unnecessarily restrictive specifications or requirements that might unduly limit the number of bidders are prohibited. The invitation includes all documents (whether attached or incorporated by reference) furnished prospective bidders for the purpose of bidding.

The Federal Acquisition Regulation (FAR), at 14.103-2 “Limitations” also provides that “No awards shall be made as a result of sealed bidding unless:

d) An award is made to the responsible bidder (see 9.1) whose bid is responsive to the terms of the invitation for bids and is most advantageous to the government, considering only price and the price-related factors included in the invitation, as provided in Subpart 14.4.

This element of competition on an equal basis is a cornerstone of the Federal Acquisition Regulations. The competitive bidding policy is set forth in FAR 6.101 as follows:

(a) 10 U.S.C. 2304 and 41 U.S.C. 3301 require… that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding government contracts.

“Full and open competition” is defined by the FAR (2.101) as that which allows all responsible sources to compete.

It should also be noted that the government is only permitted to procure its minimum needs.

In summary, the basic idea behind sealed bidding is that specifications are to be prepared which are specific enough to permit bidders to compete on an equal basis. The competition is supposed to be limited to price. When hurried and defective plans and specifications are issued, bidders may have different interpretations of what the solicitation requires and the resulting competition may not be limited to price. Bidders should complain, before bid opening, about plans and specifications that are not well-suited to the sealed bidding process. If the government does not respond appropriately, a pre-bid protest should be considered.

Updated: August 3, 2018