What are the rules for oral proposals?

A government contracting official raised the following question: It seems that many agencies have begun to require offerors to give oral presentations in addition to their written proposals on new procurements. In some cases oral presentations are about the only things on which the source-selection decision is based. Are there any rules for oral proposals of this sort? What are the major pitfalls in the use of oral proposals?

The use of oral proposals as a primary part of the source-selection process is a new but increasingly common phenomenon. Traditionally agencies would accept oral proposals only when urgent circumstances prevented them from soliciting and evaluating written proposals. For larger procurements some agencies would conduct oral discussions with the offerors to ensure that the offerors understood the government's requirements and that the government understood the offerors' proposals.

Recently however some agencies have used oral presentations to replace significant portions of written proposals. The trend is more apparent in services contracts in which the government may request offerors to orally present solutions to sample tasks. The practice is popular in acquisitions of information systems because technology is changing so quickly. Many government officials apparently believe that oral proposals save time and make it easier to acquire the latest technology.

Unfortunately little information about oral proposals is available. In March 1996 the Procurement Executive Association in partnership with the Office of Federal Procurement Policy issued a helpful pamphlet titled "Guidelines for the Use of Oral Presentations " which provides examples and the results of several agencies' experiences.

The law provides relatively little guidance. Historically agencies have conducted oral proposals primarily when exigent circumstances prevented written proposals. For example in American Modular Systems Inc. (B-231842 Oct. 4 1988 88-2 CPD Paragraph 317) an agency decided to allow oral proposals over the telephone in a recompetition following a default termination. In a protest against the procurement the protester argued that the use of oral proposals prevented full and open competition. But the General Accounting Office determined that no evidence suggested that oral proposals limited competition.

However no case addresses the use of oral proposals under normal non-exigent procurements. In general agencies have broad discretion provided that all offerors are treated fairly. Even when a protester alleges unequal treatment GAO will give the agency the benefit of the doubt in most cases. For example in AVCO Corp. (B-236640.2 Jan. 10 1990 90-1 CPD Paragraph 40) GAO denied a protester's petition that the agency denied it a fair opportunity to compete by giving the company only one day to submit an oral presentation although its competitor which had knowledge of the protester's price had a full month to prepare its submission.

Although agencies typically want to bind the offerors to the representations made in their oral proposals most agencies do not want to be bound by any oral statements made by their employees. Consequently most solicitations include disclaimers that warn offerors not to rely on oral advice from government employees during the procurement unless it is confirmed in writing. Generally these disclaimers are enforceable. Refer to Eastern Marine Inc. (B-213945 March 23 1984 84-1 CPD Paragraph 343) : "An offeror relies on a contracting agency's oral advice which conflicts with the clear language of the specifications at its own risk where the solicitation specifically states that oral advice as to the interpretation of solicitation provisions will not be binding."

Although agencies believe oral proposals save time no evidence supports this proposition. In fact many contractors believe it takes at least as much effort to participate in a procurement that emphasizes oral presentations as it does to prepare a written proposal. Only time will tell whether the budding interest in oral proposals is justified.

-- Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn Washington D.C.

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