Request for Determination of Bid Acceptability

The Navy requested an advance decision regarding the acceptability of considering the bid of a firm which included preprinted standard commercial terms and conditions which were at variance with the invitation for bids (IFB). The IFB contained a clause stating that the bidder's signature on the IFB constituted a waiver of preprinted terms and conditions appearing on any company letterhead or other document submitted with the bid, unless otherwise specified in writing by the bidder. The Navy stated that two previous GAO decisions regarding similar cases seemed at variance. While GAO recommends that agencies not employ waiver clauses in their solicitations, such clauses, when present, should not be disregarded in the evaluation of bids. Previous decisions which instructed agencies to disregard waiver clauses were based on the inclusion of commercial terms and conditions in some modified form which implied their application to the bid in which they were included. In the instant case, the offending material was included in a group of eight brochures describing the bidder's equipment and was not modified in any way to imply that it was a part of the bid. Accordingly, the bid could be considered to have been made in accordance with the terms stated in the IFB.