Can a government agency require bidders to attend a pre-bid conference or lose their bid?

Plain-English summary

In 1987, the Administrator of Maryland's Division of State Documents asked the Attorney General whether a solicitation for a State contract could require bidders or offerors to attend a pre-bid or pre-proposal conference as a mandatory condition, since the form used to advertise State procurements in the Maryland Register let the procuring agency mark such attendance as mandatory.

The Attorney General concluded that a bid or proposal could not be rejected for failure to attend a pre-bid or pre-proposal conference, even if the solicitation had labeled attendance mandatory. Under competitive sealed bidding, the Procurement Law only allows an agency to reject a bid for lacking "responsiveness" (conformance to the solicitation's material terms) or the bidder for lacking "responsibility" (capability and integrity to perform), and the opinion found no logical link between conference attendance and either concept: responsiveness is judged from the face of the written bid document, and nothing said at a conference can change the solicitation's terms unless formally reduced to a written amendment. The same reasoning applied under competitive negotiation, where the analogous concepts are "acceptability" and "responsibility." The opinion recommended that the Division of State Documents change its solicitation form to remove the option of marking conference attendance mandatory, though it noted an agency remains free to strongly encourage attendance.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If a Maryland solicitation said attendance at the pre-bid conference was "mandatory," could a bidder who skipped it still win the contract in 1987?
Yes, according to this opinion. The Attorney General concluded that a bidder's absence from even a labeled-mandatory pre-bid or pre-proposal conference could not be used to reject its bid or proposal, because Maryland's Procurement Law only permitted rejection for lack of responsiveness or responsibility, and conference attendance affected neither.

Could anything said at a pre-bid conference change the terms of the solicitation?
No. The opinion explained that under the procurement regulations then in place, nothing stated at a pre-bid conference could alter the invitation for bids or request for proposals unless the procurement officer made a formal written amendment, so a bidder's proposal still had to be judged against the original written solicitation terms regardless of what was discussed at any conference.

Did this rule apply the same way to both sealed bidding and competitive negotiation contracts?
Yes. The opinion found that although sealed bidding uses "responsiveness" and negotiated procurement uses "acceptability," the underlying logic was the same in both systems, and it applied its responsibility analysis to both, concluding attendance at either a pre-bid or a pre-proposal conference had no bearing on a bidder's or offeror's capability to perform the contract.

Background and statutory framework

Under the State Finance and Procurement Article, a contract awarded by competitive sealed bidding requires public notice of the invitation for bids, and a contract awarded by competitive negotiation requires comparable notice; contracts expected to exceed $25,000 must have that solicitation notice published in the Maryland Register. Pre-bid and pre-proposal conferences had become a common feature of these solicitations, with the notice typically specifying whether attendance was mandatory, but the Procurement Law itself did not address such conferences, and the procurement regulations authorized pre-bid conferences without saying whether attendance could be required.

For competitive sealed bidding, the opinion applied the statutory definitions of a "responsive" bidder (one whose bid conforms in all material respects to the solicitation) and a "responsible" bidder (one with the capability, integrity, and reliability to perform), noting that the Procurement Law generally does not authorize rejecting a bid on any other ground. Because responsiveness must be judged from the face of the written bid, and because nothing said at a pre-bid conference can alter the solicitation's terms absent a written amendment, the opinion found a bidder's absence from the conference had no effect on responsiveness. Similarly, because responsibility turns on financial resources, experience, integrity, and similar capability factors, the opinion found no logical connection between conference attendance and a bidder's capability to perform the contract after award.

For competitive negotiation, where the concept of "responsiveness" does not apply and initial proposals are instead classified as acceptable, potentially acceptable, or unacceptable, the opinion reasoned that an offeror's commitment to be bound by its proposal is unaffected by its absence from a pre-proposal conference, since the material terms of the request for proposals likewise cannot be changed except by written amendment. The opinion also noted that the concept of "responsibility" is defined the same way under both procurement methods, so its responsibility analysis for competitive sealed bidding applied equally to competitive negotiation.

Citations

Statutes:

• §13-202(c)(1) of the State Finance and Procurement Article (public notice requirement for invitations for bids)
• §13-202(c)(2) of the State Finance and Procurement Article (publication in the Maryland Register for contracts over $25,000)
• §13-203(b) of the State Finance and Procurement Article (public notice requirement for competitive negotiation)
• §13-203(e) of the State Finance and Procurement Article (negotiations must include all responsible offerors)
• §13-202(g) of the State Finance and Procurement Article (grounds for rejecting a bid)
• §13-101(i) of the State Finance and Procurement Article (definition of a responsive bidder)
• §13-101(h) of the State Finance and Procurement Article (definition of a responsible bidder or offeror)
• §17-202 of the State Finance and Procurement Article (Maryland State Board of Contract Appeals jurisdiction over bid protests)
• §11-111 of the State Finance and Procurement Article (future codification renaming competitive negotiation to competitive sealed proposals)
• Chapter 840, Laws of Maryland 1986 (1987 revisions to the Procurement Law)
• COMAR 21.05.02.07 (pre-bid conference regulation)
• COMAR 21.05.02.08 (amendments to an invitation for bids)
• COMAR 21.05.03.03B (classification of proposals as acceptable, potentially acceptable, or unacceptable)
• COMAR 21.05.03.03C(1) (definition of "responsible offerors")
• COMAR 21.05.03.03C(3) (pre-proposal conference cannot change RFP terms absent written amendment)
• COMAR 21.05.03.03E (amendments to a request for proposals)

Cases:

• Grade-Way Construction v. United States, 7 Cl. Ct. 263, 266 (1985)
• Federal Elec. Corp. v. Fasi, 527 P.2d 1284, 1291 (Haw. 1974)
• Board of Education v. Allender, 206 Md. 466, 475 (1955)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PROCUREMENT LAW

Solicitation Notices—Pre-Bid/Pre-Proposal Conferences—Attendance At Conference May Not Be Made Mandatory.

March 3, 1987

Robert J. Colborn, Jr., Administrator
Division of State Documents

You have requested our opinion on whether solicitation notices for competitive procurements may include a provision mandating attendance at a pre-bid or pre-proposal conference. The form currently used by the Division of State Documents to obtain the information necessary to advertise a State procurement in the Maryland Register includes a section in which the procuring agency states whether attendance at such a conference is mandatory.

For the reasons given below, we conclude that a bid or proposal may not be rejected on the ground that the offeror failed to attend a pre-bid or pre-proposal conference, even if the agency designated attendance at the conference to be mandatory.1 Accordingly, we suggest that the solicitation form currently used by the Division of State Documents be changed to eliminate the agency's option to advertise that attendance at a pre-bid or pre-proposal conference is mandatory.

I
Background

If a contract is required by the Procurement Law to be awarded by competitive sealed bidding, "[p]ublic notice of the invitation for bids shall be given prior to the date for the opening of bids." §13-202(c)(1) of the State Finance and Procurement Article ("SF" Article). Comparable public notice is required if the contract is to be awarded by competitive negotiation. SF §13-203(b).2 In either case, if the contract amount is expected to be over $25,000, the notice must be published in the Maryland Register.3 This published advertisement of the invitation for bids ("IFB") or the request for proposals ("RFP") is commonly referred to as the solicitation notice.

Pre-bid conferences, held prior to the submission of bids by bidders under competitive sealed bidding, and pre-proposal conferences, held prior to the initial submission of proposals by offerors under competitive negotiation, have become common. The solicitation notice typically identifies the time and place of any conference and states whether attendance by would-be contractors is mandatory. Compare, e.g., ID No. M/C 54-87 (attendance not mandatory) with ID No. MR32 (attendance mandatory), 14 Md. Reg. 222 (Jan. 23, 1987). However, the Procurement Law itself does not address pre-bid or pre-proposal conferences. The procurement regulations expressly authorize pre-bid conferences but do not say whether they may be made mandatory:

"Pre-bid conferences may be conducted by the procurement officer or his designee to explain the procurement requirements. They shall be announced to all prospective bidders who were sent an invitation for bids or who have obtained the bidding documents. The pre-bid conference should be held long enough after the invitation for bids has been issued to allow prospective bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the pre-bid conference results in the preparation of bids. Nothing stated at the pre-bid conference shall change the invitation for bids unless a change is made by the procurement officer by written amendment. If a summary of the conference is made, it shall be supplied to all prospective bidders who were sent an invitation for bids or who have obtained the bidding documents. If a transcript is made, it shall be a public record." COMAR 21.05.02.07.

II
Competitive Bidding

A. Introduction

The Procurement Law generally does not authorize an agency to reject a bid unless the bid is not "responsive" or the bidder is not "responsible." See SF §13-202(g). Thus, a bidder's failure to attend a "mandatory" pre-bid conference may result in rejection of its bid only if that absence affects responsiveness or responsibility.

B. Responsiveness

SF §13-101(i) defines a responsive bidder as "a person who has submitted a bid . . . which conforms in all material respects to the requirements of the solicitation." The Maryland State Board of Contract Appeals ("MSBCA") has described the nature of a responsive bid as follows:

"It is a well established principle of procurement law that in order for a bid to be responsive it must constitute a definite and unqualified offer to meet the material terms of the IFB. The material terms of an IFB are those that could affect the price, quantity, quality or delivery of the goods or services sought by the IFB." Long Fence Co., Docket No. MSBCA 1259, 2 MSBCA Decisions (MICPEL) ¶ 123, at 6 (February 13, 1986) (citations omitted).4

Statements at a pre-bid conference may not, in and of themselves, alter the terms of the solicitation unless they become part of the solicitation by amendment: "Nothing stated at the pre-bid conference shall change the invitation for bids unless a change is made by the procurement officer by written amendment." COMAR 21.05.02.07.5 Accordingly, a bidder's failure to attend a pre-bid conference cannot affect the extent to which its bid constitutes a definite and unqualified offer to meet the material terms of the solicitation.

Moreover, responsiveness must be determined from the face of the bid: "[The MSBCA] has repeatedly held that a bid must be determined responsive from the face of the bid document and not from information subsequently obtained through the verification process or other extrinsic evidence." Calvert General Contractors Corp., Docket No. MSBCA 1314 (Dec. 24, 1986) (emphasis added). See also, e.g., Inner Harbor Paper Supply Co., Docket No. MSBCA 1064, 1 MSBCA Decisions (MICPEL) ¶ 124, at 4 (Sep. 9, 1982). Accord, Grade-Way Construction v. United States, 7 Cl. Ct. 263, 266 (1985). Hence, responsiveness does not turn on whether a bidder attended a pre-bid conference.

C. Responsibility

SF §13-101(h) defines a "responsible bidder or offeror" as a "person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance." Responsibility embraces matters such as financial resources, ability to perform in the face of other business commitments, record of performance on other contracts, record of integrity, experience, skill, business organization, equipment and technical resources, and all like matters generally relating to the capability and qualifications of the bidder. See, e.g., Federal Elec. Corp. v. Fasi, 527 P.2d 1284, 1291 (Haw. 1974).

A procurement officer necessarily has broad discretion with respect to responsibility determinations. See, e.g., Board of Education v. Allender, 206 Md. 466, 475 (1955); Allied Contractors, Inc., Docket No. MSBCA 1191, 1 MSBCA Decisions (MICPEL) ¶ 179, at 8 (Aug. 16, 1984). See also 43 Comp. Gen. 228 (1963). However, there is no logical connection between attendance at a pre-bid conference and a bidder's experience, qualifications, integrity and like factors relating to responsibility. Responsibility involves an assessment of the bidder's capability to perform a contract, and that assessment may be logically based upon the bidder's activities prior to the contract, such as its experience in related work. We fail to discern, however, any connection between attendance or non-attendance at a pre-contract event such as a pre-bid conference and the bidder's capability to perform the contract requirements after the contract is let.

III
Competitive Negotiation

Unlike competitive sealed bidding, competitive negotiation affords a procuring agency an opportunity to discuss an offeror's commitment after the established due date for receipt of initial proposals.6 Thus, the concept of responsiveness is not applicable to competitive negotiation. Tower Building Corp., Docket No. MSBCA 1057, 1 MSBCA Decisions (MICPEL) ¶ 13, at 8 (April 2, 1982); Beilers Crop Service, Docket No. MSBCA 1066, 1 MSBCA Decisions (MICPEL) ¶ 125, at 5 (Sept. 16, 1982). It follows that an offeror's failure to attend a pre-proposal conference cannot raise a responsiveness issue.

Once received, proposals initially are classified by the procurement officer as acceptable, potentially acceptable, or unacceptable. COMAR 21.05.03.03B. The concepts of acceptability and responsibility are related under the procurement regulations: "The term 'responsible offerors' includes only those firms who submitted proposals that are acceptable or potentially acceptable. The term does not include firms which submitted unacceptable proposals." COMAR 21.05.03.03C(1).7

Any negotiations conducted must include all responsible offerors SF §13-203(e).

Absent a written amendment, the terms of an RFP may not be changed at a pre-proposal conference. COMAR 21.05.03.03C(3).8 The material terms of the RFP must be in writing and must be included in the RFP. An offeror's failure to attend a preproposal conference does not affect the offeror's commitment to be bound by its proposal. Thus, attendance at a pre-proposal conference is not relevant to the acceptability of the offeror's proposal.

More generally, the concept of responsibility is the same under both competitive sealed bidding and competitive negotiation. SF §13-101(h). Therefore, for the reasons discussed in Part II C above with regard to responsibility under competitive sealed bidding, the failure of an offeror to attend a preproposal conference is not pertinent to the offeror's responsibility.9

IV
Conclusion

In summary, it is our opinion that, while a solicitation provision strongly encouraging attendance at a pre-bid or preproposal conference is permissible, neither the solicitation nor the solicitation notice may mandate such attendance. Failure to attend a "mandatory" pre-bid or pre-proposal conference may not result in rejection of a bid or proposal. Moreover, absent a proper written amendment, nothing stated at a conference may alter the terms of an invitation for bids or request for proposals.

J. Joseph Curran, Jr., Attorney General
Edward S. Harris, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 This conclusion applies to all conferences held as a part of a competitive procurement, whether or not a solicitation notice is published. See note 3 below and accompanying text.

2 In Chapter 840, Laws of Maryland 1986, the General Assembly enacted extensive revisions to the Procurement Law. These revisions take effect July 1, 1987 and, among many other amendments, change the name of the competitive negotiation procurement method to "competitive sealed proposals." See future SF §11-111. The conclusions reached in this opinion are applicable to competitive sealed proposals. More generally, this opinion applies equally to both the pre- and post-July 1, 1987 versions of the law.

3 SF §13-202(c)(2) provides as follows: "Notices for bids on State contracts for which the bid amount is reasonably expected to be over $25,000 . . . shall be published in the Maryland Register."

4 The MSBCA is an independent agency within the Executive Branch with exclusive jurisdiction to hear and decide State contract formation disputes (bid protests). SF §17-202. Issues concerning bid responsiveness and bidder responsibility arise in the context of such bid protests.

5 Amendments to an invitation for bids must be in writing and receipt of all amendments must be acknowledged by the bidder in its bid. COMAR 21.05.02.08.

6 The due date for receipt of proposals is competitive negotiation's equivalent to the date of bid opening under competitive sealed bidding.

7 Despite the link between acceptability and responsibility, a procurement officer initially may determine a proposal to be acceptable or potentially acceptable but then, before award, determine that the offeror submitting that proposal is not responsible. Responsibility of a bidder or offeror is determined as of the time of award of the contract. Louise T. Keelty, Esq., Docket No. MSBCA 1195, 1 MSBCA Decisions (MICPEL) ¶ 85, at 7 (Sep. 26, 1984).

8 With some minor exceptions, not applicable here, amendments to an RFP are subject to the same requirements as amendments to an IFB. COMAR 21.05.03.03E. See note 5 above.

9 The decisions of the Comptroller General of the United States, who decides bid protests against award of federal contracts, are consistent with our view that the rejection of a bid or proposal may not turn on attendance at a pre-bid or pre-proposal conference. See 50 Comp. Gen. 355 (1970); Southeastern Services, Inc., et al., B-183108, 75-1