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Posted on Friday, July 20, 2012

Be Safe: Interpret “Should” In An RFP To Mean “Shall”

Although the English language clearly distinguishes the words “should” and “may” from the word “shall,” GAO does not. Recently, an RFP from the CIA required offerors to provide resumes for all personnel. KPMG submitted resumes for all personnel to be used not only for the initial performance period but also for the out years despite a letter from the agency during discussions that it “should” do so. Based perhaps on an ambiguous agency discussions letter to Deloitte that also included the word “should” regarding resumes, Deloitte did not submit resumes for personnel to be used during the out years and won.

When KPMG challenged the different way the CIA treated the resume requirement, the CIA defended this difference by claiming that “should” does not mean “shall.”

GAO disagreed: “in the context of the discussions at issue, a reasonable offeror would understand that the agency’s discussions established a duty; that is, if KPMG wished to be considered compliant with the RFP, it was required to submit resumes for all proposed personnel from all five years of contract performance. As we have noted previously, terms like ‘may’ and ‘should’ are capable of expressing a mandate.”

It’s smart to play it safe and interpret “should” as “shall” – especially with resumes that typically do not count against any proposal page limits that may be limiting how much material you can submit when seeking a government contract.

KPMG LLP, B – 406409; B – 406409.2; B – 406409.3; B – 406409.4, May 12, 2012.

Author Terry O’Connor is the Director of Government Contracts for the Washington, DC business law firm, Berenzweig Leonard, LLP and has written five books on government contracts law.