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point, it is probably a correctable matter. Other mistakes, however, are not cor-
rectable. For example, the RFP will usually set an absolute date and time by
which the proposal must be received. If the vendor entrusts delivery of the pro-
posal to a third party service and the proposal is delivered late, the proposal is
disqualified and the vendor’s remedies are probably limited to obtaining a
refund from the third party service.
It is more problematic if the governmental entity is the party making the
mistake. Assuming the RFP so provides, mistakes and errors can be corrected
by issuing an amendment or addendum. However, if the mistake is discovered
at the last minute, providing additional time to respond to the RFP may be war-
ranted. A vendor could challenge a last-minute modification, especially one that
could be perceived as placing the vendor at a disadvantage.
If the proposals are already submitted, the government is without power to
correct the mistake, but other limited remedies may be available. For example,
if the government erroneously describes what it wishes to procure and none of
the bids are responsive, assuming it has included language reserving the right
to not award a contract, the government can withdraw or cancel its solicitation.
While that procurement effort may be terminated, it is free to proceed with a
new procurement that properly describes the scope of the solicitation. Simi-
larly, if the government determines that a mandatory requirement criterion is
wrong, once the proposals have been submitted, correction is not possible. The
downside, however, is that the vendor has already invested significant resources
in responding to the RFP and may not wish to invest more effort responding
to the new solicitation. In some jurisdictions, however, the solicitation may
permit the waiver of a mandatory requirement that no one can meet. Such a
remedy, however, is available only if no one satisfies such a requirement. If one
vendor can satisfy the “wrong” mandatory criterion, it cannot be waived.
Problems can also arise if there is a perception that the solicitation was
drafted to favor one vendor over another. As noted before, an underlying
concept of the competitive bid process is fairness. If a governmental entity
decides to make certain requirements that could be perceived as favoring one
vendor over another, it is imperative that there be a record of the decision-
making process. At a minimum, there needs to be a valid business reason for
the decision. For example, suppose that Agency A operates on hardware plat-
form B supported by a specific telecommunications protocol. It makes a deter-
mination that the livescan submissions to its new AFIS must comply with its
already existing specific telecommunications protocol. Even if this may be per-
ceived as favoring one vendor over another, it does not appear to be a violation
of the fairness requirements. Instead, the requirement is supported by a valid
business reason and should be defendable if challenged.