Eagle Creek asserts that it misinterpreted the SFO as requiring boat dockage, and that the agency "had actual or constructive knowledge" that Eagle Creek's offer included costs for this feature. Eagle Creek argues that the agency was therefore required to advise the company during negotiations that the SFO did not require offerors to include costs for boat dockage. Protester's Comments at 7.

In support of this contention, Eagle Creek states that in November 2010 it met with representatives of GSA and the DHS at the protester's facility. The protester claims that "[a]t the meeting, DHS representatives expressed general approval of the building in which DHS' offices would be located, and expressed specific approval of, desirability and need for use of dock facilities that would be available to DHS." Protest at 3. The protester explains that based upon these statements, and section 1.4 of the SFO, which provides that "[t]he right to use appurtenant areas and facilities is included" in the offered lease, SFO at 5, it interpreted the SFO to "mean that dock usage was a requirement of the [s]olicitation and that the price proposal should include said required usage." Protester's Comments at 4; see Protest at 7.

The protester also points to a letter it sent to the agency after negotiations closed as confirmation of its belief during the procurement that dock usage was a requirement of the SFO. This letter "outline[s] some of the advantages the Eagle Creek site has to offer over other sites," including the "[d]ocks at Eagle Creek," "24 designated transient slips," "launch ramp, hydraulic trailer [and] heated 40' x 80' service department building," all of which would be "available to Homeland Security." AR, Tab 9, Eagle Creek Letter to GSA, Mar. 31, 2011, at 1-2.

We first note that, although the initial version of the SFO posted on October 10, 2010, stated that GSA was seeking "to lease office space . . . and two boat slips," the SFO, as amended and posted on January 11, 2011, and under which this lease was awarded, did not. Compare SFO 9NY2355 (Feb. 16, 2010) with SFO 9NY2355 (Jan. 7, 2011). That is, there was no mention in the SFO under which this lease was awarded of any requirement that boat slips or boat dockage be provided as part of the lease. Given the clarity of the solicitation, the protester's asserted reliance on the views expressed by the DHS representatives in November 2010, as somehow adding a requirement for boat dockage or boat slips to the SFO, issued in January 2011, was misplaced. We have repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency. Noble Supply and Logistics, B‑404731, Mar. 4, 2011, 2011 CPD para. 67 at 3; TRS Research, B‑274845, Jan. 7, 1997, 97-1 CPD para. 6 at 3. This would be especially the case, where the alleged oral advice was given 2 months prior to the solicitation being reissued as amended.

Nor do we agree with the protester that section 1.4 of the SFO, which provides that "[t]he right to use appurtenant areas and facilities is included" in the offered lease, SFO at 5, required that the protester make its facility's boat slips and dockage available for use by the agency. The SFO does not include a definition of "appurtenant," and none has been cited to by the parties. As such, we must accord that term its plain meaning. That is, "[t]he term "appurtenant in a lease is defined to include 'everything which is necessary and essential to the beneficial use and enjoyment of the thing leased or granted.'" See Hammond-Warner v. United States, 797 F.Supp. 207, 210 (E.D.N.Y. 1992), citing Ruggiero v. Long Island Railroad, 161 A.D.2d 622, 555 N.Y.S.2d 401, 402 (2d Dep't 1990)). This definition and understanding of "appurtenant" is consistent with the agency's explanation that the SFO's "Access and Appurtenant Areas" provision, as evidenced by the solicitation, is a standard clause included in all GSA SFOs "that affords the Government the right to use building lobbies, common hallways, plazas and other appurtenant areas and facilities." Contracting Officer's Statement at 4.

To construe this clause, as the protester asserts it did, that is, to essentially include in its offer of office space the entirety of its facility and all of its facility's amenities at no cost to the government is simply unreasonable. To illustrate, under the protester's asserted interpretation of section 1.4 of the SFO, the protester would have had to make available to the Government as part of its lease of certain office space on the third floor and all of the second floor of its "Eagle Creek Facilities Bldg.," all of Eagle Creek's boat dockage and 24 slips, as well as it launching ramp, hydraulic trailer, and service department building, as "appurtenant areas" at no additional cost.

We also note that Eagle Creek's March 31 letter expressly recognized that Eagle Creek may be competing against offers providing inland facilities. In this regard, Eagle Creek's March 31 letter recognized "that GSA is responsible for selecting the lowest priced facility," with Eagle Creek then comparing its facility to a facility located inland, and positing that "this is not an easy apples to apples comparison, it is more like an apples to oranges situation." The letter closes by stating that Eagle Creek "hope[s] that this outline of amenities available at Eagle Creek will make your decision easier in selecting a location that represents the best value for Homeland Security." AR, Tab 9, Eagle Creek Letter to GSA, Mar. 31, 2011, at 2. Thus, Eagle Creek recognized that its offer may be competing in what is essentially a price competition, against offers for inland facilities (which, as recognized by Eagle Creek and by their very nature, cannot provide boat slips or dockage). Consequently, its asserted interpretation of the solicitation as requiring that facilities located on the water include in their lease price the costs for boat dockage and slips, while those offering facilities located inland or off the water would not have to include such costs, is patently unreasonable.

We also find the protester's position that the agency knew or should have known that Eagle Creek had allegedly included the costs for boat dockage and slips in its offer to be without merit. As for actual knowledge, the agency states that it was unaware during the course of this acquisition that Eagle Creek's offer included such costs. Contracting Officer's Statement at 5. There was nothing in Eagle Creek's offer indicating or otherwise providing for boat dockage, and the protester does not assert that it advised agency representatives during the competition that boat dockage was included in Eagle Creek's offer.

Further, we agree with the agency that Eagle Creek's letter of March 31, 2011, did little or nothing to clarify specifically what was included in Eagle Creek's offer. That is, while the letter references, among other things, the "[d]ocks at Eagle Creek," "24 designated transient slips," and the "launch ramp, hydraulic trailer [and] heated 40' x 80' service department building," which would be "available to Homeland Security," it also states that "Eagle Creek is offering up to 600 [square feet] of free secured storage." (emphasis added). AR, Tab 9, Eagle Creek Letter to GSA, Mar. 31, 2011, at 1‑2. As pointed out by the agency, this letter does not state whether the boat dockage, slips, trailer, and building were going to be "made available" for a fee or at no cost (i.e., "free") to the agency.

Moreover, the record shows that negotiations with Eagle Creek closed on March 28. See AR, Tab 7, Agency Letter (Mar. 25, 2011). As such, Eagle Creek's March 31 letter, which the protester points to in support of its position that the agency knew or should have known that Eagle Creek had erroneously included the costs of boat dockage its offer, was submitted after the close of discussions. It is well established that an agency need not reopen discussions to resolve deficiencies first introduced by the offeror after discussions have closed. Ogden Support Servs., B‑270354.2, Oct. 29, 1996, 97‑1 CPD para. 135 at 7; IPEC Advanced Systems, B‑232145, Oct. 20, 1988, 88‑2 CPD para. 380 at 4.

In sum, Eagle Creek's alleged misinterpretation of the SFO to require that its offer include costs associated with boat dockage and slips was a reasonable interpretation of the solicitation. In addition, the protester's assertion that the agency knew or should have known that Eagle Creek's offer erroneously included such costs, and should have raised that issue during discussions, is without merit.  (Eagle Creek Marina, B-405220, September 16, 2011)  (pdf)

Finally, CMS asserts in a supplemental protest that the agency’s award to LAX was improper because the awardee (“LAX Hospitality LP, Radisson Inn”) was not the entity that submitted the proposal upon which the award was based (“LAX Hospitality, LLC, DBA Radisson Hotel at Los Angeles Airport”). In fact, CMS notes that the latter entity identified as submitting the proposal was not registered with Central Contractor Registration (CCR). It is true that a contract cannot be awarded to any entity other than the one which submitted the proposal. However, the name of an offeror need not be exactly the same in all of the offer documents; although, the offer documents or other information available must show that differently-identified offering entities are in fact the same legal entity. Al Hamra Kuwait Co., supra, at 3. The fact that an offeror has only one taxpayer identification number (TIN) or data universal numbering system (DUNS) number and only one address is often a reliable indicator of the offering entity. S3 LTD, B- 288195 et al., Sept. 10, 2001, 2001 CPD para. 164 at 11-12. The agency asserts that the difference in entity names was a mere clerical error. This discrepancy was discovered when the contracting officer’s search of the DUNS number listed on the awardee’s proposal, which indicated that the entity name identified for that DUNS number was LAX Hospitality LP, Radisson Inn. Upon discovering the discrepancy, the contracting officer contacted LAX, who confirmed that LAX Hospitality, LP was the name of the entity, not LAX Hospitality, LLC. Supp. AR at 6. The contracting officer also noted that the address listed in the proposal and in the DUNS systems was that of LAX Hospitality, LP, which was registered with the CCR. Id. Therefore, we find that, notwithstanding the variations in the identification of the awardee between the proposal and award, the agency reasonably determined that LAX Hospitality, LP was the proper entity and was eligible to receive award. (Command Management Services, Inc., B-310261; B-310261.2, December 14, 2007) (pdf)

Battelle argues that the agency improperly rejected its initial proposal based on Battelle’s omission of the option year pricing. Battelle contends that the agency should have suspected that Battelle had made a “mistake or clerical error” in its proposal and had a “duty to verify” Battelle’s proposal and conduct “clarifications” to allow Battelle to correct the omission. Protest at 3-4, 6-8. In support of its argument, Battelle cites FAR sect. 15.306(a)(2), which permits clarifications to “resolve minor or clerical errors,” and FAR sect. 15.306(b)(3)(i), which permits communications before the establishment of the competitive range to address proposal ambiguities such as “errors, omissions, or mistakes.”  An offeror bears the burden of submitting and adequately written proposal that contains all of the information required under a solicitation, Sam Facility Mgmt, Inc., B-292237, July 22, 2003, 2003 CPD para. 147 at 5, and an agency may reject a proposal that omits required pricing. Joint Venture Penauillie Italia S.p.A; Cofathec S.p.A; SEB.CO S.a.s; CO.PEL.S.a.s., B‑298865, B-298865.2, Jan. 3, 2007, 2007 CPD para. 7 at 6. Although, in an appropriate case, an agency may allow an offeror to correct a mistake or clerical error in a cost or price proposal through clarifications (as opposed to discussions), when it does so, both the existence of the mistake or error and the amount intended by the offeror must be apparent from the face of the proposal. Id. at 8. Here, although the existence of Battelle’s error was clear from the face of its proposal, it was not obvious what pricing Battelle intended to propose for the missing option years. Although, as Battelle points out, the initial proposal referred to “inflation adjustment[s]” in the narrative portion of the proposal, these vague references do not explain Battelle’s intended pricing for the option years. That is, Battelle’s option year pricing, as reflected in the 24 pages of pricing spreadsheets and additional narrative that Battelle provided to the agency in its agency protest, could not be gleaned from Battelle’s references to inflation adjustments in the initial proposal submission, and did not constitute “minor or clerical errors” as contemplated by the FAR. Thus, we find that the omission of Battelle’s option year pricing could not be corrected through clarification or verification. See University of Dayton Research Inst., B‑296946.6, June 15, 2006 , 2006 CPD para. 102 at 8. Regarding Battelle’s argument that “errors, omissions, or mistakes” can be corrected by communications before the establishment of the competitive range, FAR sect. 15.306(b)(2) specifically provides that communications under this section “shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal.” See also FAR sect. 15.306(b)(3) (“communications shall not provide an opportunity for the offeror to revise its proposal”). Again, we agree with the agency that Battelle’s omission of the option year pricing is material, given the RFP’s requirements to provide detailed option year pricing for evaluation, and any attempt to cure this omission would necessitate submission of a revised proposal and would constitute discussions. See Joint Venture Penauillie, supra, at 8. Finally, Battelle contends that the agency’s decision to eliminate its proposal from further competition was inconsistent with the RFP. According to Battelle, since the RFP provides that the competitive range will be established based only on the evaluation of technical proposals, see RFP at 73, the elimination of Battelle’s proposal based on a cost issue was premature and its pricing omissions should have been addressed after establishment of the competitive range and through discussions. However, unless the agency decides to establish a competitive range, the RFP provision referenced by Battelle does not apply, and it does not require the agency to conduct discussions. As noted, the agency has not yet decided to establish a competitive range and to conduct discussions. Rather, the agency rejected Battelle’s proposal (along with two others), after inspecting proposals for completeness, for not containing all of the information required by the RFP, a decision which, as discussed above, was reasonable. Consistent with the RFP, if the agency makes award based on initial proposals, then Battelle’s proposal cannot be considered for award. If, on the other hand, the agency decides to conduct discussions, we expect that the agency then will have to decide whether or not to include Battelle’s proposal in the competitive range. See FAR sect. 15.306(c)(1). (Battelle Memorial Institute, B-299533, May 14, 2007) (pdf)

Where, as here, a mistake in an offer other than the awardee's offer is first alleged after award, the general rule is that the unsuccessful offeror must bear the consequences of its mistake unless the contracting officer was on actual or constructive notice of an error before award. PAE GmbH Planning and Constr., B-233823, Mar. 31, 1989, 89-1 CPD ¶ 336 at 3. Omega asserts that the magnitude of the difference in the two offerors' discount fees should have provided constructive notice of the mistake, and that the contracting officer should have sought clarification from Omega. In this connection, the agency report acknowledges that "[a]fter comparison, the evaluators did note the apparent spread of the proposed discount fees." Contracting Officer's Statement at 4. However, Omega's alleged improper pricing of its proposal does not present the type of mistake which could be corrected through clarifications, nor was the agency required to conduct discussions in order to correct the mistake.  (Omega World Travel, Inc., B-283218, October 22, 1999)

In sum, the Postal Service’s actions in eliminating Asia Pacific from consideration for an award of a contract were arbitrary and capricious. After first qualifying Asia Pacific for the Competitive Bidding Event based upon its original proposal, and then allowing Asia Pacific to submit further pricing bids during the electronic Bidding Event with the apparent result that Asia Pacific was the winner of a contractual award respecting the two largest lanes involved in the Solicitation, it subsequently was arbitrary and capricious for the Postal Service to disqualify Asia Pacific from any award based upon an interpretation of the scheduling provisions in the Solicitation that it refused to discuss with, or to clarify for, Asia Pacific. See Purchasing Manual §§ 4.2.5.c (“The final stage of discussions is reaching agreement on the contract’s terms and conditions with the apparently successful supplier. . . . [D]uring this stage any remaining issues should be addressed and revised.”), 4.2.5.c(3)(c) (“all suppliers must be treated fairly”). Cf. Information Technology, 316 F.3d at 1320-23 (applying the distinction between “minor clarification” and “discussion” in the Federal Acquisition Regulations as amended in 1997 to evaluate the fairness of communications with one offeror). (Asia Pacific Airlines, v. U. S. and Corporate Air, Alpine Air, and Aloha Airlines, Inc., No. 05-711C, October 14, 2005) (pdf) (Postal Service Procurement using Postal Service Procurement Manual)

We would find it bizarre to conclude that the Army has an obligation to clarify a bidder's clerical error, but not its own. Such a policy endorses official negligence. We see no reason to do so when the missing information is as prosaic and self-authenticating as a name and phone number. The integrity of the procurement process is enhanced, not harmed. The government's obligation is clear and simple. If it suspects a clerical error, it must ask. We therefore find that the Army's failure to inquire under these circumstances is arbitrary and capricious and a violation of 5 U.S.C. § 706.  (Griffy's Landscape Maintenance LLC, v.. U.S. and Easy Tree Services, Intervenor, No. 99-999C, March 2, 2000)