Request For Quote

[GABE]

Scenario:
 

RFQ issued under FAR 13. RFQ stated a clear specification. Quotation that was received from Company A offered an alternative specification commercial item, with a no return stipulation stated within the quote. 
 

Award document ( SF1449 ) was signed by company a, which stated the specification from the solicitation, which is what the government requested.
 

Company A is not accepting a return.

Whom, legally, will win?

[Krimz]

So, the RFQ requested one specification, Company A offered a different specification, and the award was made to Company A for the solicited specification?  If Company A offered something other than what was requested, why was the award made to them?

I assume you're Company A.  If you received an award for one item, and then provided a different item, you are in breach of contract (assuming you signed or delivered your product, which binds you).

[Constricting Officer]

Did the RFQ allow for submission of "equal" or "alternate" products to begin with?

[joel hoffman]

“13.004 Legal effect of quotations.

(a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.

(b) When appropriate, the contracting officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in writing, as defined at  2.101. In other circumstances, the supplier mayindicate acceptance by furnishing the supplies or services ordered or by proceeding with the work to the point where substantial performance has occurred.

(c) If the Government issues an order resulting from a quotation, the Government may (by written notice to the supplier, at any time before acceptance occurs) withdraw, amend, or cancel its offer. (See  13.302-4 for procedures on termination or cancellation of purchase orders.)”

——————————————-

The quoted price was clearly for something other than the government requested specification.

Did the supplier initially accept the order?

What does this mean? “Company A is not accepting a return.” 

If the contractor initially accepted the order, was the order clearly worded to reflect the originally requested specification so that the supplier would reasonably know that the order was for the original specification?

If the supplier didn’t accept the order or otherwise perform the work in accordance with the terms of the order, in my opinion there is no contract.

It is apparent to me that there was no meeting of the minds…

Edited April 6, 2023 by joel hoffman

[joel hoffman]

I either didn’t read the OP clearly or it has been clarified while I was posting and editing my post.

If the supplier didn’t accept the governments order and didn’t perform in accordance with the terms of the order, I don’t think that there is a contract.

As for who is responsible for the cost of the return of the shipment, I don’t know.

Edit:  Apparently, the government ignored the terms of the quote, (except the price?). I wonder what the intent of contracting officer or their specialist was… 

Edited April 6, 2023 by joel hoffman

[joel hoffman]

Deleted. 

[joel hoffman]

By the way, I’m not a lawyer. 

12 hours ago, GABE said:

Who[ ], legally, will win?

Check with your attorney. M

Sorry - I worked contract claims for many years. Here, my opinion is only an opinion, based upon limited information, herein. 

Edited April 6, 2023 by joel hoffman

[C Culham]

12 hours ago, GABE said:

Whom, legally, will win?

My opinion based on limited facts.

Company A submitted signed quote offering alternative.

Government signed 1449 returning to Company A and failed to note alternative offered item.

Company A accepted the order by supplying the alternative item which Government received.

Company A complied with its quote.

Government keeps the stuff and pays Company A the quoted price.

Alternative- Government negotiates return, etc, etc, etc.  But if Company A does not want to help negotiate then too bad so sad, lesson learned by Govetnment on doing due diligence.

I might agree with consulting legal counsel but my opinion would be my approach.  Value, item, etc would also dictate the course.

Bottom line Government offer accepted by Company A, and Company A delivered.

[Vern Edwards]

Did Company A sign the SF1449 award document, Block 28?

[C Culham]

5 minutes ago, Vern Edwards said:

Did Company A sign the SF1449 award document, Block 28?

Or in other words signed with Block 28 checked?  

Why does it matter as the Government is acknowledging that an alternative was offered so it would seem the Government's offer was for the alternative if the Goverment did not state otherwise?

[Vern Edwards]

According to the OP, the government issued an RFQ for Item X, not an RFP.

According to the OP, Company A sent a quote for a different item. So it did not make an offer on Item X that the government could accept.

The government sent out an SF1449 based on Item X. So what was that? It could not be an acceptance, because there was no offer to accept. So, what was it?

If it was a purchase order, it was an offer to buy Item X. Did the contractor accept that offer by signing Block 28? If not, is there any other basis for claiming that Company A accepted the government's "award."

Is there a contract?

Company A shipped the different item. If there was no contract, it is not entitled to payment and the government has no basis for default. There is nothing to "win" unless one of the two sets of  incompetents sues the other.

[Vern Edwards]

I just noticed that the OP said that tCompany A signed he "award document." If so, and depending on the possible existence of other facts, it may be that Company A agreed to provide the specified Item X. Much would depend on how the transaction was carried out and what the award document says.

[C Culham]

I did say limited facts.  

I understand your thoughts yet

6 hours ago, Vern Edwards said:

is there any other basis for claiming that Company A accepted the government's "award."

Performance (delivery) can be I thought?

[GABE]

13 hours ago, Krimz said:

So, the RFQ requested one specification, Company A offered a different specification, and the award was made to Company A for the solicited specification?  If Company A offered something other than what was requested, why was the award made to them?

I assume you're Company A.  If you received an award for one item, and then provided a different item, you are in breach of contract (assuming you signed or delivered your product, which binds you).

Solicitation was a RFQ. Government received a quote, not offer.

[joel hoffman]

23 hours ago, GABE said:

Award document ( SF1449 ) was signed by company a, which stated the specification from the solicitation, which is what the government requested.
 

Gabe edited the original post again to clarify that the government offered to buy the originally required item for the price that the firm quoted for the alternate item and Firm A signed the purchase order, signifying acceptance of the governments offer.

Then Firm A supplied what it originally quoted and won’t accept a return.

Gabe originally stated that the governments purchase order clearly stated clearly that the order was for what the government originally specified.

Gabes revised, original post no longer states this. Hmmmm. 

It appears that Firm A was either misled or misunderstand the government’s offer.

I see that there are at least two posts submitted while I write this. I haven’t seen them yet.

[GABE]

8 hours ago, Vern Edwards said:

I just noticed that the OP said that tCompany A signed he "award document." If so, and depending on the possible existence of other facts, it may be that Company A agreed to provide the specified Item X. Much would depend on how the transaction was carried out and what the award document says.

Award document does state specifications as outlined within the RFQ and was signed by Company A. 

[GABE]

4 minutes ago, joel hoffman said:

Gabe edited the original post again to clarify that the government offered to buy the originally required item for the price quoted for the alternate item and that the contractor signed the purchase order signifying acceptance of the governments offer.

Not an offer.

[GABE]

13 hours ago, Krimz said:

So, the RFQ requested one specification, Company A offered a different specification, and the award was made to Company A for the solicited specification?  If Company A offered something other than what was requested, why was the award made to them?

I assume you're Company A.  If you received an award for one item, and then provided a different item, you are in breach of contract (assuming you signed or delivered your product, which binds you).

The award document was signed by company A. However, company A did not quote the specification stated in the RFQ.

[GABE]

3 hours ago, C Culham said:

I did say limited facts.  

I understand your thoughts yet

Performance (delivery) can be I thought?

Delivery and signature of vendor A (sf1449)

[joel hoffman]

13 hours ago, joel hoffman said:

 

11 minutes ago, GABE said:

Not an offer.

Really, Gabe?

From 13.004(a):” The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.”

People are posting faster than I can type.

Gabe, why did you say that when the government issued an order at the quoted price but not for the item that company A quoted, it was “[n]ot an offer” ?

[GABE]

13 hours ago, joel hoffman said:

I either didn’t read the OP clearly or it has been clarified while I was posting and editing my post.

If the supplier didn’t accept the governments order and didn’t perform in accordance with the terms of the order, I don’t think that there is a contract.

As for who is responsible for the cost of the return of the shipment, I don’t know.

Edit:  Apparently, the government ignored the terms of the quote, (except the price?). I wonder what the intent of contracting officer or their specialist was… 

Perhaps it was an oversight by the CO.

[GABE]

7 minutes ago, joel hoffman said:

 

Really Joel?

a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract

 

The offer from the Government is the award document.

 

 

[joel hoffman]

3 minutes ago, GABE said:

Perhaps it was an oversight by the CO.

Gabe, are you the “firm A”?  If so, you don’t know that. If so, why did Firm A sign the order? 

Or do you work for the contracting office?  

I’m  not going to discuss “mutual error”unless it is clear who is which party and what each side thought they were issuing and agreeing to. 

[GABE]

2 minutes ago, joel hoffman said:

Gabe, are you the “firm A”?  If so, you don’t know that. If so, why did Firm A sign the order? 

Or do you work for the contracting office?  

I’m  not going to discuss “mutual error”unless it is clear who is which party and what each side thought they were issuing and agreeing to. 

Thank you for stating your opinion.  

[joel hoffman]

16 minutes ago, GABE said:

Really Joel?

a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract

 

The offer from the Government is the award document.

 

 

Gabe, the order is an offer. It may be the award document but only if the firm accepts the offer. 

 

14 hours ago, joel hoffman said:

“Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.”

Edit: I don’t think we can answer your initial question. There could be a mutual error if there was “an oversight by the KO “ and a misunderstanding by company A of what it agreed to supply..

But that hasn’t been established by the facts.

The fact that Firm A supplied what it quoted its price for may be an indication that it thought the government agreed with its quote…

Edited April 7, 2023 by joel hoffman