Q. Communicating with potential contractors through pre-bid conferences is a good way to control costs and minimize claims. However, a number of grantees around the country have taken the position that attendance at pre-bid conferences cannot be made mandatory. We have been researching regulations and other guidance to find that requirement, without success. I reviewed Chapter 4, Section 18.104.22.168 Pre-bid and Pre-proposal Conferences, in the Best Practice Procurement Manual, but that discussion did not address mandatory attendance at such conferences. I also checked the Federal Acquisition Regulation (FAR) at Subpart 15.201 (f). It implied that if a proposer did not attend a pre-bid conference, the government "should" make the materials distributed at the conference available to the potential offeror, upon request. Having provided all that background, can you:
A. FTA has not previously issued a policy statement on this issue. However, the FTA’s position is that attendance at pre-bid conferences should not be made mandatory.
The main reason for this position is that the solicitation’s specifications and ultimately the contract itself must stand alone and contain the entire contractual commitment between the parties. Anything that happens at a pre-bid conference to change what is expected under the terms of the solicitation must be incorporated into the contract by means of an amendment to the solicitation. Our experience has been that pre-bid conferences sometimes bring out the existence of ambiguities or inconsistencies in contract language. These are then changed in the solicitation/contract and made available to all offerors. The result of this process is that anything that changes the contractual obligations of the parties must find its way into the solicitation and contract by means of an amendment to the original solicitation that is issued to all potential offerors. FAR Part 15.201(f), for example, requires the contracting officer to make available to "all potential offerors," upon request, any information distributed at a pre-solicitation or pre-proposal conference. The clear presumption of the FAR is that "potential offerors" may not be (and need not be) present at the pre-proposal conference.
In addition, mandatory pre-bid attendance could work a hardship on some potential bidders, especially small businesses. Also, overreliance on pre-bid conferences may promote poor contract language because of the feeling that everyone understands the intent of the contract based on the discussions held at the pre-bid conference. If those discussions are not then converted to new and clear contract terms, those who were not present at the conference will be at a disadvantage. An alternative may be to strongly encourage attendance, but to utilize modern information dissemination technologies to ensure that all potential contractors have access to the same information prior to preparing their bids or offers. (Revised: September 4, 2009)
Q. A vendor asked if they can tape a pre-bid conference. Is this permissible?
A. Grantees often record these conferences. We see no problem in allowing the attendees to record the conference. Be sure to inform the attendees prior to the conference that they may record the meeting and also advise them that nothing said at the conference changes the terms of the solicitation – changes can only be made via a written amendment to the solicitation. (Posted: January 2010)
Q. Are we required to meet with the bidder(s) individually if we do not have a pre-bid conference? Additionally, is it a matter of public record to provide the amount of the contract?
A. The answers to your questions will be governed by state or local procurement law. FTA policy does not require you to hold a pre-bid or pre-proposal conference, although such conferences can be useful. You are not required by FTA policy to meet with prospective bidders before proposals are due. Similarly, FTA policy does not require you to announce contract awards. Your state or local procurement laws will specify what information you are required to disclose and when you are required to disclose it. (Posted: May 2010)
Q: Is it proper procedure for a recipient of an FTA grant to give one bidder information at a pre-bid and then not make it publically available until 5 days later to the other bidders, without extending the bid date? Does the FTA regard this as fair and open competition?
A. The grantee is expected to answer questions that arise at the pre bid conference but is also required to publish all questions and answers, including the furnishing of any new data, to all interested bidders, and then to allow sufficient time for everyone to review the new information and prepare their proposals or bids accordingly. Five days does not appear to be a sufficient amount of time to prepare proposals after receiving the new data from the pre bid conference. We would expect the grantee to ask the prospective bidders how much time they needed to submit proposals in light of the new information. (Posted: December, 2011)