Clarifications Were Properly Conducted

PSI first asserts that the Army conducted discussions with PSI, and that those discussions were inadequate. Its argument is based on PSI’s claim that, despite being labeled as clarifications, the questions posed by the Army through ENs were essential to determining the acceptability of PSI’s proposal, that PSI’s responses materially affected the evaluation of its proposal, and, therefore, that its responses should be considered proposal revisions. Protester’s Comments at 2. Accordingly, PSI maintains that the Army was required to hold comprehensive discussions with PSI to advise it of all the significant weaknesses in its proposal, which the firm argues it could have corrected.

The Army responds that it did not hold discussions but, rather, limited its communications with both offerors to clarifications. Thus, the agency argues that it properly did not communicate with PSI regarding aspects of its proposal that would have required proposal revisions to correct. In short, the agency maintains that it conducted only clarifications because it was proceeding to make award without discussions.

Federal Acquisition Regulation (FAR) § 15.306 describes a range of exchanges that may take place during negotiated procurements. In short, an agency is not required to hold discussions, and thus to allow offerors to submit proposal revisions; rather, it may properly limit its communications with offerors to clarifications. Id. Clarifications are defined as "limited exchanges" between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2). Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. FAR § 15.306(d). Accordingly, our Office has confirmed that where communications do not permit an offeror to revise or modify its proposal, but rather request that the offeror clarify and confirm what the offeror has already committed to do, those communications are clarifications and not discussions. ERIE Strayer Co., B-406131, Feb. 21, 2012, 2012 CPD ¶ 101 at 4-5.

The record here supports the Army’s position that it sought only clarifications from the offerors, and then made award based on the initial proposals as clarified. Notwithstanding PSI’s arguments, our review of the record shows that the questions posed to PSI and LSI were indeed clarifications--requests for each offeror to supply information clarifying the basis for statements in its proposal, or confirming what the offeror intended by a statement within its proposal. Thus, for example, where PSI’s proposal indicated reuse of software code without making clear from which system the code was being reused or the status of the development of that code, the Army properly sought a clarification from PSI. None of the Army’s ENs invited either firm to revise its proposal. Accordingly, we agree with the Army that it did not conduct discussions, and we deny PSI’s assertion that the Army held defective discussions by failing to identify other weaknesses in PSI’s proposal that could have been addressed only through proposal revisions.  (Pinnacle Solutions, Inc., B-406998, B-406998.2, Oct 16, 2012)  (pdf)

Finally, L-3 contends that the agency acted unreasonably in not conducting discussions with the offerors. The protester argues that it is clear from the record that each of the offerors and the agency lacked a common understanding of the scope of the requirements of this contract. L-3 believes that the differences in proposed price prove its contention that there were significant differences in the offerors’ perceptions of the scope of work. Comments at 4. Therefore, the protester argues that the agency should have either amended the RFP to make its expectations about each project more clear or conducted discussions with the offerors. Id. at 4-5.

The contracting officer’s discretion in deciding not to hold discussions is quite broad. Trace Sys., Inc., B-404811.4, B-404811.7, June 2, 2011, 2011 CPD ¶ 116 at 5. There are no statutory or regulatory criteria specifying when an agency should or should not initiate discussions, and there is also no requirement that an agency document its decision not to initiate discussions. Id. As a result, an agency’s decision not to initiate discussion is a matter that we generally will not review. Booz Allen Hamilton Inc., B-405993, B-405993.2, Jan. 19, 2012, 2012 CPD ¶ 30 at 13.

The agency argues, and we agree, that the RFP, coupled with the agency’s responses to the 167 questions it had received regarding the RFP, and the fact that both the protester and the awardee are incumbents currently performing tasks that are substantially similar to the tasks required under the RFP at issue, provided the parties involved here with a common understanding of the scope of the contract. Further, while the RFP set out a common scope of work, the proposal instructions also anticipated that offerors would propose different approaches to achieving the desired outcomes. Therefore, we find no basis on which to sustain this protest ground.  (L-3 Services, Inc., B-406292, Apr 2, 2012)  (pdf)

Post-Final Proposal Exchanges with Lockheed

Next, CH2M Hill argues that NSF improperly reopened discussions with Lockheed concerning its cost proposal after the submission of the final round of proposal revisions. Supp. Protest (Feb. 17, 2012). Specifically, the protester contends that an exchange between NSF and Lockheed on December 5, 2011, constituted discussions because it permitted the awardee to revise its cost proposal. Id. NSF responds that the exchanges with Lockheed constituted clarifications, rather than discussions. We agree with the agency.

If an agency holds or reopens discussions with one offeror, it must hold discussions with all offerors whose proposals are in the competitive range. Federal Acquisition Regulation (FAR) § 15.306(d)(1); Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 CPD ¶ 75 at 6. Clarifications, however, are limited exchanges that agencies may conduct to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. FAR §15.306(a)(2); Booz Allen Hamilton, Inc., B-405993, B-405993.2, Jan. 19, 2012, 2012 CPD ¶ 30 at 12. An agency may allow an offeror to correct a mistake or clerical error in a cost proposal through clarifications (as opposed to discussions); both the existence of the mistake or clerical error and the amount intended by the offeror must be apparent from the face of the offer. 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 ¶ 7 at 8. Requesting clarification from one offeror does not trigger a requirement that the agency seek clarification from other offerors. Serco Inc., B-406061, B-406061.2, Feb. 1, 2012, 2012 CPD ¶ 61.

During discussions, NSF noted that Lockheed’s June 11, 2011, cost proposal appeared to have a discrepancy between the hours proposed in attachment L-9, which was to address the labor costs for the prime contractor, and attachment L-10, which was to address the combined labor costs for the prime contractor and its proposed subcontractors. AR, Tab 028-05, Lockheed Discussion Question (Sept. 14, 2011). In particular, the agency stated that “[t]he L-9 staffing hours seem to be quite high and do not match the direct labor dollars proposed.” Id. The agency further noted that the labor hours listed in attachment L-10 for the base year appeared to have a mathematical error, and should have been [deleted], instead of [deleted] hours. Id. In contrast, attachment L-9, which should have contained only the prime contractor hours, totaled [deleted] hours--which appeared to be overstated. Id. NSF requested that Lockheed explain the discrepancy.

In response, Lockheed confirmed that the agency’s calculation for attachment L-10 was correct, and should have reflected [deleted] hours for the prime and subcontractor hours. AR, Tab 028-05, Lockheed Discussion Response, (Sept. 30, 2011). The awardee stated that the error within attachment L-10 was due to the omission of certain hours for a subcontractor. Id. With regard to the discrepancy between attachments L-9 and L-10, the awardee explained that attachment L-9 had double-counted the hours for Lockheed Martin Systems Integration (LMSI), resulting in the overstated amount. Id.

Despite these discussions regarding Lockheed’s double-counting error, the agency subsequently noted an error in the awardee’s October 25 revised proposal, which was the final proposal requested from offerors. The agency sent a letter to Lockheed on December 2 “seeking clarification to confirm what appears to be a clear mistake in the total staffing hours assigned to Attachment L-9 in your Final Proposal Revision.” AR, Tab 028-02, Letter from Agency to Lockheed (Dec. 2, 2011), at 1.

The agency’s clarification request noted that the September 2011 discussions, cited above, had confirmed that Lockheed had erroneously double-counted hours for LMSI, resulting in an overstated labor hour amount for attachment L-9, and therefore a discrepancy between attachments L-9 and L-10. Id. The agency stated that its review of Lockheed’s October 25 proposal identified what the agency believed was “the same inconsistency between the completed Attachment L-9 and Attachment L-10.” Id. The agency provided two tables summarizing what the agency believed was the same double-counting error, resulting in a discrepancy between what appeared to be the correct number of hours in attachment L-10, and a higher amount for attachment L-9. Id. at 2-3. NSF requested that Lockheed confirm that the proposed amount for attachment L-10 of [deleted] for the base and option periods was correct. Id. at 3.

On December 5, Lockheed advised the agency that it “confirms the result of the [NSF’s] analysis and concurs with the results stated in the letter. There is no change to our proposed price.” AR, Tab 028-03, Letter from Lockheed to Agency (Dec. 5, 2011), at 1.

In the selection decision, the SSA noted that the exchanges with Lockheed had taken place, and described them as follows:

NSF sought clarification from Lockheed concerning a clear mistake in recording in the total staffing hours proposed by the offeror as set forth in its completed Attachment L-9 as described in the Contract Officer’s letter dated December 2, 2011. Lockheed confirmed NSF’s analysis of the mistake by letter dated December 5, 2011.

AR, Tab 19-05, SSD, at 7.

CH2M Hill argues that NSF’s December 2 request to Lockheed constituted discussions, rather than clarifications, because the agency had no basis to conclude that Lockheed had made a mistake, nor any basis to know what the awardee had intended to propose as its costs. The protester, in essence, argues that the exchanges between the agency and awardee permitted Lockheed to revise its proposal by resolving a discrepancy in its proposal that was not obvious on its face.

As shown above, however, NSF was made aware as a result of discussions with Lockheed in September 2011 that the awardee had made an error in its June 11 proposal by double-counting the proposed hours for LMSI in attachment L-9 of its cost proposal. The agency subsequently noted what appeared to be the same error in Lockheed’s October 25 proposal, that is, a double-counting of LMSI’s hours in attachment L-9, which again resulted in an apparent discrepancy between attachments L-9 and L-10. AR, Tab 028-02, Letter from Agency to Lockheed (Dec. 2, 2011), at 1. The agency therefore asked Lockheed to confirm the agency’s understanding that the double-counting error resulted in an overstated amount for attachment L-9, and that attachment L-10 showed the correct number of labor hours for the base and option years; the agency did not, however, provide the awardee an opportunity to submit a revised cost. On this record, we conclude that NSF’s exchanges with Lockheed on December 5 constituted a clarification of a mistake, and not discussions.

Additionally, CH2M Hill contends in its February 17 supplemental protest that there is a discrepancy between the proposed labor hours for the base year in attachment L-10 of Lockheed’s October 25 proposal and, and what the protester assumes was a different value in attachment L-10 of Lockheed's September 30 proposal--a discrepancy that the protester argues indicates that the agency improperly permitted the awardee to revise its proposed cost. In this regard, the protester notes that offerors were not permitted to revise their labor hours in the October 25 proposals, as RFP amendments 17 and 18 limited proposal revisions to non-labor costs. RFP amend. 17 at 3; amend. 18 at 2.

As discussed above, NSF’s September 14 discussions notice asked Lockheed to confirm whether the labor for the base period reflected in attachment L-10 should have been [deleted] hours; Lockheed confirmed that this was correct. AR, Tab 028-02, Letter from Agency to Lockheed (Dec. 2, 2011), at 3; Tab 028-03, Letter from Lockheed to Agency (Dec. 5, 2011), at 1. NSF’s December 2 letter advised Lockheed that the agency had again identified a variance between the labor hour totals for attachments L-9 and L-10; a table in this letter stated that Lockheed’s October 25 proposal included [deleted] labor hours for the base period in attachment L-10. AR, Tab 028-02, Letter from Agency to Lockheed (Dec. 2, 2011), at 2.

The protester argues that because Lockheed confirmed to NSF on September 30 that its June 11 proposal should have reflected [deleted] hours in the attachment L-10 summary, the awardee’s September 30 proposal likely included the same number of labor hours. Based on this assumption, and the fact that Lockheed’s October 25 proposal set forth [deleted] hours for option year one, CH2M Hill argues that NSF must have permitted Lockheed to revise its proposed labor costs for option year one to [deleted] labor hours at some point after September 30.

The record shows, however, that CH2M Hill’s assumption is incorrect. Although Lockheed’s September 30 response to the discussion question confirmed that its June 11 proposal should have reflected a total of [deleted] hours for attachment L-10, Lockheed also revised those proposed costs in its September 30 proposal to [deleted] hours--as it was permitted to do. Supp. AR (Feb. 23, 2012), attach. 1, Lockheed Cost Proposal (Sept. 30, 2011). Thus, the revised amount was reflected in Lockheed’s September 30 proposal, as well as its October 25 cost proposal--which was the subject of the agency’s December 2 request for clarification. For these reasons, we find no basis to sustain the protest concerning NSF’s clarifications of Lockheed’s cost proposal after final proposal revisions were submitted.  (CH2M Hill Antarctic Support, Inc., B-406325, B-406325.2, B-406325.3, Apr 18, 2012)  (pdf)

PN&A also asserts that by seeking clarifications from CPD, but not from PN&A, DOE treated offerors disparately in its conduct of oral presentations. PN&A points out in this regard that the solicitation stated that the TEP may request clarifications “[f]ollowing the [oral] presentation,” not a week after the oral presentation. Protester’s Comments at 18; see RFQ at 3. The protester also seems to argue that the agency engaged in discussions rather than clarifications with the other vendors, which would then require that the agency hold discussions with all vendors. Protester’s Comments at 19.

Agencies have broad discretion as to whether to seek clarifications from offerors, and offerors have no automatic right to clarifications regarding proposals. See A.G. Cullen Constr., Inc., B-284049.2, Feb. 22, 2000, 2000 CPD ¶ 45 at 5-6. Here, the agency states that its decision to engage in clarifications with some vendors but not others was the direct result of the information or lack of information presented in the oral presentations. Supplemental Agency Report at 4. Given that PN&A’s oral presentation was unacceptable, we find the agency reasonably exercised its discretion in not engaging in clarifications with that firm, given that PN&A would have had to materially revise its proposal to be considered acceptable.

We also agree with the agency that the post-oral presentation communications that it had with CPD were clarifications, not discussions. Our Office examined, in camera, the documentation surrounding these communications and find that CPD did not revise its quotation as a result of these communications. Instead, CPD’s exchanges with the agency were limited to providing additional explanation for what it had previously proposed and thus did not constitute discussions. See Northeast MEP Servs., Inc., B-285963.9, Mar. 8, 2001, 2001 CPD ¶ 66 at 4. The fact that these exchanges took place one week after CPD’s oral presentation is not relevant, given that CPD was not given the opportunity to change its quotation as a result of these communications.  (PN&A, Inc., B-406368, Apr 23, 2012)  (pdf)

BAH asserts that the Navy held discussions with VSE, allowing VSE to revise its cost proposal during exchanges with DCAA, without providing BAH a similar opportunity to revise its proposal.

VSE’s cost proposal included its proposed indirect rates and an explanation for the downward adjustment to its rates from its historic ones. AR, Tab 15, VSE Proposal, Vol. IV, Supporting Cost Data, at 41-43. As part of its cost realism evaluation, the CAP requested that DCAA perform rate verifications of both offerors’ proposals. In the course of its rate verification audit, DCAA received additional supporting cost data from VSE which provided a narrative explanation in support of VSE’s proposed indirect rates, but did not alter the proposed rates. Id., Tab 19, VSE Global Indirect Rates, at 1-11. The DCAA considered VSE’s supplemental submission as part of its rate verification audit, and subsequently provided it to the CAP which took the information into account as part of its cost realism evaluation of VSE’s indirect rates. Id., Tab 3, CAP Report, at 16.

Contrary to BAH’s position, we find that the agency’s exchanges with VSE did not constitute discussions. In this regard, FAR § 15.306 describes a range of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are “limited exchanges” between an agency and an offeror for the purpose of clarifying certain aspects of a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8. Discussions, on the other hand, occur when a contracting officer communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Highmark Medicare Servs., Inc. et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 11; Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD ¶ 108 at 6; see FAR § 15.306(d). When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors whose proposals are in the competitive range. Gulf Copper Ship Repair, Inc., supra.

In situations where there is a dispute regarding whether exchanges between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Id.; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5. Communications that do not permit an offeror to revise or modify its proposal, but rather permit the offeror to explain or clarify what the offeror has already proposed to do, are clarifications and not discussions. Allied Tech. Group, Inc., B-402135, B-402135.2, Jan. 21, 2010, 2010 CPD ¶ 152 at 6; SRS Tech., B-291618.2, B-291618.3, Feb. 24, 2003, 2003 CPD ¶ 70 at 3 n.4.

We agree with the agency that the supplemental cost information provided by VSE to DCAA during the audit agency’s rate verification audit constituted clarifications rather than discussions. First, the exchange was not undertaken with the intent of allowing the offeror to revise its proposal. See FAR § 15.306(d); Warden Assocs., Inc., B-291238, Dec. 9, 2002, 2002 CPD ¶ 215 at 3; MG Indus., B-283010.3, Jan. 24, 2000, 2000 CPD ¶ 17 at 9. In this regard, we note that the FAR provides for a contracting agency when conducting a cost proposal analysis to request audit assistance from DCAA. See FAR § 15.404-2(c)(1). It is clear from the record that the DCAA audit of VSE was intended as a means of gathering information for use in the Navy’s cost evaluation and possible future discussions; it was not initiated for the purpose of holding discussions with VSE, which are to be conducted by the contracting officer. See FAR § 15.306(d)(1). Further, VSE did not revise its proposal so as to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the proposal to make it acceptable. See eMind, B-289902, May 8, 2002, 2002 CPD ¶ 82 at 5. The acceptability of VSE’s proposal simply did not turn on the additional information furnished to DCAA. In sum, VSE’s exchange with DCAA did not involve revising its proposed indirect cost rates, but rather, was limited to providing additional explanation for what it had previously proposed. See Northeast MEP Servs., Inc., B-285963.9, Mar. 8, 2001, 2001 CPD ¶ 66 at 4. In these circumstances, there is no basis to conclude that DCAA or the Navy improperly conducted discussions with only one offeror.  (Booz Allen Hamilton, Inc., B-405993,B-405993.2, Jan 19, 2012)  (pdf)

Analytic asserts that the agency improperly failed to request that Analytic clarify aspects of the firm’s proposal relating to the evaluated proposal weaknesses. Protest at 7; Comments at 2-3. Analytic points out that the solicitation stated that the agency would consider the “correction potential” of proposals. Protest at 7 n.1 (referencing RFP § M.1.4). According to Analytic, each proposal weakness was “readily correctable or explainable.” Protest at 7; see also Comments at 3. The agency responds that given the magnitude of Analytic’s proposal weaknesses, material proposal revisions would be required to render the proposal acceptable, and, therefore, the weaknesses were not properly the subject of clarifications. Contracting Officer’s Statement at 10; Memorandum of Law at 5.

Clarifications are “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. Federal Acquisition Regulation § 15.306(a)(2). Agencies are not required to request clarifications in the context of an award, such as the one here, made without discussions. Id. § 15.306(a)(1); Government Telecomm., Inc., B-299542.2, June 21, 2007, 2007 CPD ¶ 136 at 8; AIA-Todini-Lotos, B-294337, Oct. 15, 2004, 2004 CPD ¶ 211 at 12. Analytic’s proposal was deemed unacceptable. Providing Analytic with an opportunity to correct the weaknesses would constitute discussions, not clarifications, because it would involve the submission of information necessary to make the proposal acceptable. Gemmo-CCC, B-297447.2, July 13, 2006, 2006 CPD ¶ 182 at 5; Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8.  (Analytic Services, Inc., B-405737, Dec 28, 2011)  (pdf)

Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to material terms is unacceptable and may not form the basis for award. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is unacceptable. See TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 2007 CPD para. 51 at 5. Here, we conclude that the objectives set forth in Table 1 were material requirements of the RFP, and that the agency reasonably determined that M1 improperly modified an objective in a manner that did not conform to the terms of the RFP.

Under a performance-based contracting arrangement, such as here, performance metrics are more than mere proposal evaluation tools. Rather, the metrics become the standards used to assess the contractor during performance, and to determine the application of contractor-proposed performance incentives and disincentives. Indeed, the objectives, measures, metrics, ALQ, and incentives/disincentives serve to establish the performance levels that are required to meet the needs of the agency, as specified in the SOO, and are critical aspects of the resulting performance-based contract. In this case, the agency pre‑printed Table 1 – Performance Metrics with statements of its objectives, and repeatedly cautioned offerors that these objectives were not to be revised. Such clearly stated RFP terms, which establish the obligations of the parties during performance, are undoubtedly material to the needs of the government; failure to conform to these terms rendered this proposal unacceptable.

Here, the objective, "[i]ncrease use of small business subcontractors and teaming partners to bring expert talent and ingenuity to the varied work under ITS-SB,” was clearly focused on increasing the use of small business subcontractors and teaming partners, rather than subcontractors and teaming partners generally. See COSF, at 18. In contrast, the modified objective proposed by M1, "[i]ncrease use of subcontractors and teaming partners to bring expert talent and ingenuity to the varied work under ITS-SB,” makes no reference to small business, and thus entirely fails to reflect the import of the agency's objective.

This failure to reflect the agency's objective is even more clear when one considers M1's proposed measure, metric and ALQ for objective 1.c. As its measure for objective 1.c, M1 proposed an "[i]ncrease in the amount of work shared with M1 partners.” As its metric, M1 proposed "total M1 direct labor performed by subcontractors compared to the total direct labor.” Finally, as its ALQ, M1 proposed "base period minimum [DELETED]% [Option] Period minimum [DELETED]%.” Proposal, Volume 1, at 21-22.

Our review of M1's proposal leads us to conclude that none of these performance metrics conform to the agency's objective of increasing the use of small businesses. Turning to M1's subcontractor participation goals, M1 proposed to subcontract a minimum of [DELETED] percent of the work under the contract, consisting of [DELETED] percent to small business subcontractors, and [DELETED] percent to large business subcontractors. Id., Volume 4, Section 2, at 3. Thus, M1's performance metrics for Objective 1.c, along with its omission of the phrase "small business” from the objective itself, would enable M1 to meet objective 1.c by subcontracting [DELETED] percent of the work under the contract to a combination of small businesses or large businesses. More importantly, in the option years, the proposed metric would allow M1 to meet its increased target of [DELETED] percent subcontracting by expanding subcontracting solely to large businesses, which clearly fails to meet the agency's actual objective of increasing the use of small business subcontractors, as set forth in the SOO, and in Table 1.

M1 next argues that despite any failure to meet the requirements of the RFP under objective 1.c, it should not have received a deficiency because it agreed to meet the agency's subcontracting objectives elsewhere in its technical proposal. For example, M1 correctly stated the agency's objective under entry 1.d of Table 1, "[e]ffectively use small business to assure achievement of subcontracting targets allowing mentorship of small business.” Id., Volume 1, at 22. M1's commitment to meet the agency's intended objective under 1.d of Table 1, however, relates to its proposed minimum small business subcontracting target. This is fundamentally different from the import of objective 1.c of Table 1, which related to increasing small business usage over the life of the contract. Given the inherent difference, there is no basis to conclude that the agency's evaluation was unreasonable.

Finally, M1 asserts that the agency was required to allow M1 the opportunity to correct its error through clarifications. Clarifications are limited exchanges between the agency and offerors that may occur where, as here, contract award without discussions is contemplated. FAR sect. 15.306(a). An agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Id. However, clarifications may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or revise the proposal. Superior Gunite, B-402392.2, Mar. 29, 2010, 2010 CPD para. 83 at 4. Because the omission of the phrase "small business” was both a material omission and a deficiency, the error was not subject to correction via clarifications.   (Mission1st Group, Inc., B-404811.3; B-404811.6, June 2, 2011)  (pdf)

The protester also contends that, prior to excluding its proposal from the competitive range, the agency should have sought clarifications from IMC. The agency responds that the significant weaknesses and deficiencies in IMC's proposal could not be resolved by clarifications. See AR at 16-20. Moreover, the agency contends that it was under no obligation to seek clarifications, in any event.

FAR sect. 15.306 describes a spectrum of exchanges that may take place between a contracting agency and an offeror during negotiated procurements. Clarifications are limited exchanges between the agency and offerors that may occur when contract award without discussions is contemplated; an agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a); Satellite Servs., Inc., B‑295866; B‑295866.2, Apr. 20, 2005, 2005 CPD para. 84 at 2 n. 2. By contrast, discussions--which are to occur after establishment of the competitive range--involve the agency indicating to each offeror the significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to materially enhance the proposal's potential for award. FAR sect. 15.306(d)(3).

Where, as here, the agency establishes a competitive range to conduct discussions, the agency may conduct communications with an offeror to facilitate the agency's understanding and evaluation of the offeror's proposal or for the purpose of exploring whether a proposal should be included in the competitive range. See FAR sect. 15.306(b)(2). Such communications, however, cannot "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." Id.; Battelle Mem'l Inst., B‑299533, May 14, 2007, 2007 CPD para. 94 at 4.

We agree with AID that the agency was not required to seek clarifications from, or otherwise have communications with IMC, prior to the establishment of the competitive range. See JBlanco Enter., Inc., B‑402905, Aug. 05, 2010, 2010 CPD para. 186 at 4, n.4. Moreover, the significant weaknesses and deficiencies in IMC's proposal could not properly be the subject of either clarifications or communications before the establishment of the competitive range, as this would require material revisions to IMC's proposal.  (International Medical Corps, B-403688, December 6, 2010)  (pdf)

The RFP advised that the agency would make award on a "best value" basis considering price and several non-price considerations. The RFP did not indicate whether the agency intended to conduct discussions. Keiwit's proposal was assigned a marginal rating under the technical approach/key personnel evaluation factor for failure to include certain demolition work. Protest at 3. The agency proceeded to make award to Boh Bros. on the basis of initial proposals, without discussions, at a price higher than Keiwit's.

An agency's intent with regard to discussions is required to be expressed in the solicitation. Specifically, under the Competition in Contracting Act (CICA), 10 U.S.C. sect. 2305(a)(2)(A)(ii)(I) (2006), solicitations in negotiated acquisitions are required to include:

either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary.

This provision is implemented by Federal Acquisition Regulation (FAR) sect. 15.209(a), which requires RFPs to include the clause at FAR sect. 52.215-1(f)(4) if the agency intends to make award without discussions, or the clause at FAR sect. 52.215-1 alternate 1, if the agency intends to make award after discussions.

Keiwit asserts that, since the RFP failed to include either of the above clauses, and the RFP was otherwise silent as to whether discussions would be conducted, the agency was required to conduct discussions by default. Keiwit claims that its omission of the demolition work was a minor error that it easily could have remedied through discussions, and that the cost of the demolition work would be lower than the price difference between its and Boh Bros.' proposals.

First, contrary to Keiwit's position, there is no basis for finding that the agency was required to conduct discussions given the RFP's silence on the point. In this regard, Keiwit cites no statutory or regulatory provision--and we are aware of none--establishing such a default rule.

Further, in the absence of either of the specified clauses, the RFP was patently ambiguous as to whether discussions were contemplated. Under our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2010), protests based on improprieties apparent on the face of a solicitation must be filed prior to the deadline for submitting proposals. Here, it was apparent that the RFP did not include one of the two alternate clauses required to be included in an RFP to advise offerors of the agency's intention regarding discussions; as a result, it was unclear whether the agency would conduct discussions. This being the case, any question regarding the agency's obligation to conduct discussions--including Keiwit's assertion that discussions were required--had to be raised, if at all, prior to the closing time for receipt of initial proposals. Carter Indus., Inc., B-270702, Feb. 15, 1996, 96-1 para. 99 at 3-4. Since Keiwit did not protest prior to the closing time, its assertion that the agency was required to engage in discussions is untimely, and will not be considered.  (Kiewit Louisiana Company, B-403736, October 14, 2010)  (pdf)

Allied argues that DOJ improperly conducted discussions only with MGS by allowing it to submit responses to two questions posed by the agency. As explained below, we conclude that the exchanges at issue here did not constitute discussions.

The solicitation, as originally issued, set forth 24 CLINs for which vendors' quotations were to provide prices: CLIN 0001 was for transition costs to the new system; CLINs 0002–0023 were for ARS services for various ranges of DOJ employees potentially covered by the system; and CLIN 0024 was the "monthly transition price," if services were needed by the agency for a period of up to 6 months at the end of the BPA. The agency subsequently amended the RFQ to clarify that, in terms of pricing CLIN 0024, vendors' prices would be determined based on the employee range CLIN being utilized at the end of BPA performance (i.e., the monthly cost for the transition period would be one-twelfth of the annual cost of the CLIN the agency was then utilizing). RFQ amend. 1, at 4. The quotation preparation instructions also informed vendors that "[a]ll CLINs shall be proposed as firm fixed prices." RFQ Instructions, at 5. While the SOW required vendors to provide monthly transition services if needed by the government, id., the quotation preparation instructions did not require that vendors' price quotations expressly acknowledge or agree to perform CLIN 0024.

MGS' price quotation contained the RFQ's price quotation instruction language, and included prices for CLINs 0001–0023 for the base period and each option period. With regard to CLIN 0024 (Monthly Transition), MGS' quotation stated, "n/a." MGS' price quotation also contained various narrative comments, including statements that "CLINs 1 through 23 are proposed as firm fixed prices," and "[p]ricing does not include Organization and Change Management, Expunge/Delete Services, as well as establishment of Dedicated Environments, which will need to be separately scoped and priced." AR, Tab 14, MGS Price Quotation, at 3-4.

Following receipt of quotations, the DOJ contracting officer sent MGS an email asking whether the vendor would allow the government to extend the contract, if awarded to MGS, on a monthly basis at a cost of one-twelfth the appropriate CLIN as stated in the RFQ (as called for by CLIN 0024). Also, with regard to the comment in MGS' quotation stating that "[p]ricing does not include Organization and Change Management, Expunge/Delete Services, as well as establishment of Dedicated Environments, which will need to be separately scoped and priced," the agency asked the vendor to "explain what these services are and if [MGS] is stating it will need to perform these services to meet the Government's requirement." AR, Tab 5, MGS Clarifications, at 1.

In its reply, MGS affirmed that it would allow the agency to extend the contract, if awarded to MGS, on a monthly basis at a cost of one-twelfth the appropriate CLIN as stated in the RFQ. Additionally, in response to the second question, MGS stated that the pricing for all services required by the RFQ was included in its submitted price quotation, and that "[n]either Organization and Change Management, nor Expunge/ Delete Services, nor Dedicated Environments will be required to fulfill the Government's requirements." Id. at 3.

As discussed above, the RFQ established the agency's intent to issue a BPA without the use of discussions. Federal Acquisition Regulation (FAR) sect. 15.306 describes a spectrum of exchanges that may take place between an agency and offeror during negotiated procurements. Clarifications are "limited exchanges" between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance the proposal's potential for award. FAR sect. 15.306(d)(3); IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD para. 90 at 3. The "acid test" for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to modify or revise its proposal. Colson Servs. Corp., B-310971 et al., Mar. 21, 2008, 2008 CPD para. 85 at 13; Computer Scis. Corp., et al., B-298494.2 et al., May 10, 2007, 2007 CPD para. 103 at 9-10. In our view, the agency's exchange with MGS here did not constitute discussions.

With regard to CLIN 0024, vendors were not required to submit a price; rather, the RFQ established how the pricing for CLIN 0024 would be determined (i.e., the monthly transition price would be one-twelfth of the annual cost of the CLIN that the agency was utilizing at the time the CLIN was ordered). Further, the RFQ instructions did not require that vendors' price quotations expressly acknowledge or agree to perform CLIN 0024. We find that it was proper for DOJ to allow MGS to address the missing confirmation regarding the application of CLIN 0024 through a clarification. See S4, Inc., B-299817, B-299817.2, Aug. 23, 2007, 2007 CPD para. 164 at 7 (agency request for affirmation or confirmation that offeror would perform a duty already encompassed by the solicitation was a clarification); Kuhana-Spectrum Joint Venture, LLC, B-400803, B-400803.2, Jan. 29, 2009, 2009 CPD para. 36 at 10 (offeror's missing affirmation of its representations and certifications correctable through a clarification). Moreover, as MGS' quotation stated that its prices for CLINs 0001-0023 were all fixed prices, and the pricing for CLIN 0024 was to be mechanically derived from the vendor's other CLINs, we find no merit in Allied's argument that MGS had not agreed to a firm-fixed price for CLIN 0024.

Similarly, we conclude that the exchange between DOJ and MGS regarding the quotation's reference to Organization and Change Management, Expunge/Delete Services, and Dedicated Environments was a clarification and not discussions. The contracting officer contacted MGS for explanation regarding a specific comment in MGS' price quotation. MGS responded that the submitted prices covered all ARS services required by the RFQ, and that while its price quotation did not include Organization and Change Management, Expunge/Delete Services, and Dedicated Environments, neither were such services required to fulfill the RFQ's stated requirements. In our view, as the contracting officer merely sought to clarify MGS' price quotation, and MGS was not given an opportunity to materially change its price quotation, the exchanges constituted a permissible clarification. See IPlus, Inc., supra; Park Tower Mgmt. Ltd., B-295589, B-295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7.  (Allied Technology Group, Inc., B-402135; B-402135.2,  January 21, 2010)  (pdf)

TAG asserts that the agency improperly conducted discussions with SAIC without similarly affording it an opportunity to revise its quotation. According to the protester, this was prejudicial because the agency identified a number of significant weaknesses in its quotation that it could have addressed in discussions.

Generally, discussions occur where a firm is afforded an opportunity to make a material revision to its proposal or quotation. Global Analytic Info. Tech. Servs., Inc., B‑298840.2, Feb. 6, 2007, 2007 CPD para. 57 at 5.

Although the agency purportedly made award on the basis of initial quotations, without engaging in discussions with either party, the record shows that, subsequent to the submission of quotations and the oral presentations, the agency and SAIC had an exchange concerning the following indemnification provision included in SAIC’s quotation relating to performing contract activities in a high-threat environment:

Customer agrees to save and hold harmless SAIC and its directors, officers, agents, employees and subcontractors (collectively, ‘SAIC’) from and against any demands, claims, suits, legal or administrative proceedings, damages, losses, costs, expenses, actions or causes of actions, and liabilities (including reasonable attorney’s fees) (‘Damages’) that are asserted against or incurred by SAIC which arise out of, directly or indirectly, or relate in any way to any act or omission by SAIC, during the performance of services under this contract. SAIC agrees to promptly notify Customer of any claim for Damages against SAIC that is covered by this provision.

SAIC Written Price Quotation, Tab E, Assumptions and other Administrative Data, sect. 5.12.6. The record shows that the agency contacted SAIC in connection with this provision, AR, exh. 19, at 15, and that, in response, SAIC removed the indemnity provision from its quotation. AR, exh. 18. The agency asserts that its exchange with SAIC was merely a clarification of the quotation, and therefore did not trigger the requirement for it to hold discussions with TAG.

An open-ended indemnification clause such as this cannot legally be included in a government contract because it would subject the government to unknown liability; as a result, it creates a potential violation of the Antideficiency Act, 31 U.S.C. sect. 1341 (2006). Assumption by Gov’t of Contractor Liability to Third Persons--Recon., B-201072, May 12, 1983, 83-1 CPD para. 501 at 6. Thus, the inclusion of the indemnification provision in SAIC’s quotation rendered the quotation as submitted ineligible for selection. By affording SAIC an opportunity to remove the indemnification clause from its quotation, the agency essentially allowed SAIC to make its unacceptable quotation acceptable. This unquestionably constituted a material revision to the quotation and, therefore, discussions. Since discussions with SAIC occurred, the agency was obliged to afford TAG a similar opportunity to participate in discussions. Global Analytic Info. Tech. Services., Inc., supra.

The agency also asserts that, even if the exchange resulted in a modification of SAIC’s quotation, this was unobjectionable because, in the context of an RFQ that does not include a late submission provision (the case here), agencies are free to accept late modifications to quotations. This argument is without merit. While the agency is correct that there is an exception to the general rule against acceptance of a late submission in the context of an RFQ that does not include a late submission provision, see KPMG Consulting, LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD para. 196 at 11-12, the exception only applies where the agency’s acceptance of such a late submission would not be prejudicial to any other competitor. Id. Allowing one firm an opportunity to revise its quotation without also allowing the other firms in the competition a similar opportunity--that is, unequal treatment--is precisely the prejudice to which the standard refers. Compare Payne Constr., B-291629, Feb. 4, 2003, 2003 CPD para. 46 at 6 (other competitors were not prejudiced by agency’s acceptance of late submission from protester because they had been afforded an opportunity to revise their quotations). Thus, while the agency indeed was permitted to accept a late modification from SAIC, it was required to provide equal treatment to the protester by providing it an opportunity to revise its quotation. Because the agency did not do so, we sustain the protest on this ground.  (The Analysis Group, LLC, B-401726; B-401726.2, November 13, 2009)  (pdf)

As described earlier, in a supplemental protest, filed timely after Kuhana-Spectrum received additional documents with the agency report, the firm argues that the Navy conducted discussions with Chesapeake to allow it to correct omissions in its proposal. Kuhana-Spectrum argues that once the Navy communicated with Chesapeake (and allowed it to remedy a problem with its proposal), the Navy was required to hold discussions with Kuhana-Spectrum also, to allow it to improve its proposal. Supp. Protest at 2.

The Navy responds, first, that it properly concluded that the omissions in Chesapeake’s proposal were either immaterial, or could be corrected via clarifications. Specifically, the Navy argues that Chesapeake constructively acknowledged each of the material amendments to the RFP, and that a failure to acknowledge the non-material amendments was properly waived. Specifically, in its supplemental agency report, the Navy explains that amendments 1, 3, 4, 6, and 7 were not material because they dealt with administrative details of the procurement process, such as extensions of the proposal due date, or they merely provided background information to the offerors. Supp. AR at 6-7. The Navy explains that, in its view, amendments 2 and 5 were material, however, and therefore had to be acknowledged.

Specifically, the Navy explains that amendment 2 changed the healthcare specialties identified in several of the lots for the initial 8-month period. However, Chesapeake’s proposal included pricing for the revised lots set forth in amendment 2. As a result, the Navy concluded that Chesapeake constructively acknowledged amendment 2 by using the revised lots in its proposal. Supp. AR at 7. Similarly, the Navy explains that amendment 5 added two new MTF locations to the contract requirements. Chesapeake’s proposal included a discussion of the firm’s approach to staffing both of the new locations, and therefore the Navy concluded that the firm had constructively acknowledged that amendment as well. Id. Finally, with respect to Chesapeake’s failure to complete DFARS sect. 252.247-7022, the Navy concluded that the provision should not have been included in the RFP, and Chesapeake’s error in failing to respond to it was properly waived. Id. at 8.

The Navy further argues that after concluding that Chesapeake had constructively acknowledged each of the material amendments to the RFP, and after concluding that the provision at DFARS sect. 252.247-7022 should not have been included in the RFP, the agency only needed to confirm that Chesapeake’s online representations and certifications were valid. It was this confirmation that the Navy concluded could be accomplished through clarifications. Since the Navy states that its communications with Chesapeake were merely a clarification, the agency argues that it was not required to open discussions with Kuhana-Spectrum. Supp. AR at 14.

We agree with the Navy on both issues. First, we think that the Navy reasonably concluded that Chesapeake’s proposal constructively acknowledged both of the material amendments to the RFP. As a general rule, an offeror’s failure to acknowledge a material amendment renders the proposal unacceptable, and such proposals may not form the basis for award. However, an amendment may be constructively acknowledged where the proposal includes the material items appearing only in the amendment. See, e.g., Language Servs. Assocs., Inc., B‑297392, Jan. 17, 2006, 2006 CPD para. 20 at 6 (quotation constructively acknowledged amendment to RFQ).

Second, we agree with the Navy that it was proper to allow Chesapeake to correct the missing affirmation of its ORCA entries through a clarification. Offerors may be given the opportunity to clarify certain aspects of proposals without holding discussions. FAR sect. 15.306(a). Specifically, an agency may allow an offeror to correct missing representations and certifications through clarifications, and does not hold discussions by doing so. Doty Bros. Equip. Co., B‑274634, Dec. 19, 1996, 96‑2 CPD para. 234 at 2 n.1 (protest sustained where agency improperly rejected proposal based on failure to acknowledge immaterial amendment and failure to complete standard representations and certifications). Accordingly, the Navy did not hold discussions with Chesapeake, and was not required to hold discussions with Kuhana-Spectrum.  (Kuhana-Spectrum Joint Venture, LLC, B-400803; B-400803.2, January 29, 2009) (pdf)

The protester argues that the agency’s request for clarification of the basis for the offerors’ rebate amounts constituted discussions because this information was necessary to determine their proposed prices, and that the SBA’s initiation of discussions in one area obligated the agency to conduct discussions regarding all significant weaknesses in offerors’ proposals.  As previously noted, the contracting officer asked both offerors to clarify whether their rebate amounts were on a monthly or an annual basis, but did not otherwise communicate with them regarding the content of their proposals. The contracting officer sought clarification of the basis for the rebate amounts after being advised by the chairperson of the technical evaluation team that since the RFP included language providing that “[t]he rebate will be made to SBA monthly,” RFP at 3, the rebate amounts entered by the offerors on their price schedules should be considered monthly amounts. The contracting officer apparently questioned whether the two offerors had indeed interpreted the RFP in this manner.  Section 15.306 of the FAR describes a spectrum of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are “limited exchanges” between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award. FAR sect. 15.306(d)(3); IPlus, Inc., B-298020, B‑298020.2, June 5, 2006, 2006 CPD para. 90 at 3. The “acid test” for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to modify or revise its proposal Computer Sciences Corp. et al., B-298494.2 et al., May 10, 2007, 2007 CPD para. 103 at 9.

In our view, the exchanges here did not constitute discussions because neither offeror was given the opportunity to revise its proposal; rather, each was merely given the opportunity to clarify the basis on which it had understood the RFP to be requesting pricing. Regarding the protester’s argument that either offeror could have revised its proposal by “offer[ing] a response that was a change from the originally submitted approach,” Protester’s Comments, Jan. 25, 2008, at 4 n.3, this is essentially an argument that either offeror could have revised its price by misrepresenting the basis for its original pricing--that is, by representing that its rebate amounts had been offered on an annual basis when it had in fact intended them to be on a monthly basis (or vice-versa). Presumably, the protester is not arguing that it would have engaged in such a misrepresentation, and, in any event, we do not think that the opportunity to increase or decrease a price 12-fold, which is the only revision that could have been achieved through such a misrepresentation, represents a meaningful opportunity to revise pricing.  (Colson Services Corporation, B-310971; B-310971.2; B-310971.3, March 21, 2008) (pdf)

Silynx asserts that the agency unreasonably failed to conduct discussions. The protester maintains that, because the agency’s initial technical evaluation was flawed, it had no reasonable basis to distinguish between the proposals for purposes of making a best value determination. Silynx claims that our decision in The Jonathan Corp; Metro Mach. Corp., B-251698.3, B‑251698.4, May 17, 1993, 93‑2 CPD para. 174 at 13-15, aff’d, Moon Eng’g Co.--Recon., B‑251698.6, Oct. 19, 1993, 93‑2 CPD para. 233 at 3-4, requires agencies to hold discussions where there is no reasonable basis to distinguish between proposals. The agency was not required to conduct discussions here. The RFP incorporated Federal Acquisition Regulation (FAR) sect. 52.212-1, which expressly advised offerors of the agency’s intent to make award without discussions. Further, the circumstances here are distinguishable from those in Jonathan. In that case, there was no clear basis to distinguish among the cost proposals due to the degree to which they varied from the government estimate, and our finding was that the agency had failed to conduct a reasonable cost evaluation; in effect, we found, the agency could not determine from the initial evaluation which proposal offered the lowest overall cost to the government. Here, in contrast, the agency had a clear basis for distinguishing between the proposals--the acceptability of Nacre’s proposal and the unacceptability of Silynx’s. Therefore, the Jonathan rationale is inapplicable here, and the agency’s decision not to conduct discussions was legally unobjectionable in these circumstances.  (Silynx Communications, Inc., B-310667; B-310667.2, January 23, 2008) (pdf)

CTC essentially argues that it submitted an acceptable subcontracting plan, and contends, in the alternative, that even its plan was unacceptable, the agency was required to advise CTC of the problems with the plan and provide the company an opportunity to revise it. Here, as explained above, the RFP required offerors to submit a detailed subcontracting plan, and listed “subcontracting plan” as one of four equally-rated technical evaluation factors. The RFP specifically stated that subcontracting plans would be evaluated to determine the extent to which offerors identify and commit to subcontracting with small businesses, the realism of the plan, the prior performance of the offeror in complying with subcontracting requirements, and the extent of participation of subcontractors in terms of the value of the total acquisition and the ability to meet mandated goals. At the conclusion of this review, CTC’s subcontracting plan was determined to be unacceptable because CTC failed to provide the requested information. CTC in its protest submissions does not argue that its plan was responsive to the RFP requirements, but rather, CTC argues that its subcontracting plan was identical to the plan it submitted in response to a previous solicitation and that the agency was required by the Federal Acquisition Regulation (FAR) 19.702 to allow CTC to clarify its subcontracting plan.  We do not agree. The record here shows that CTC submitted an inadequate subcontracting plan in that it was not responsive to the specific requirements of the RFP. Since the solicitation advised offerors that the agency intended to make award without discussions, the protester could not presume that it would have a chance to correct deficiencies and weaknesses through discussions. The burden was on CTC to submit an initial proposal, complete with a subcontracting plan that adequately demonstrated its merits, and the protester ran the risk of rejection by failing to do so. DRT Assocs., Inc., B-237070, Jan. 11, 1990, 90-1 CPD para. 47 at 2. There is no basis in this record for concluding that the decision to award without discussions was improper, or that the rejection of CTC’s subcontracting plan was unreasonable.  (Central Texas College, B-309947, October 12, 2007) (pdf)

The solicitation expressly provided that the agency intended to make award without discussions and the agency did in fact make award without holding discussions. FAR sect. 15.306(a)(2), which addresses clarifications and award without discussions, states in relevant part that where an award will be made without conducting discussions, “offerors may be given the opportunity to clarify certain aspects of proposals . . . or to resolve minor or clerical errors.” Pursuant to this provision, an agency has broad discretion to decide whether to engage in clarifications with an offeror. INDUS contends that the agency acted unreasonably by not allowing it to correct this aspect of its proposal through clarifications since it had allowed other offerors to clarify certain aspects of their price proposals. An agency, however, generally has the discretion to decline to seek clarifications from an offeror, even where the agency has engaged in clarifications with other offerors. See General Dynamics--Ordnance & Tactical Sys., B-295987, B-295987.2, May 20, 2005, 2005 CPD para. 114 at 9 n.4; Landoll Corp., B-291381 et al., Dec. 23, 2002, 2003 CPD para. 40 at 8. While we recognize that there may be a rare situation where it would be unfair to request clarification from one offeror but not from another, the mere fact that an agency requests clarification from one offeror and not another, does not constitute unfair treatment. General Dynamics--Ordnance & Tactical Sys., supra; see also, FAR sect. 1.102-2(c)(3) (providing that “[a]ll contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same”). As a consequence, INDUS has not established that the agency acted improperly or in contravention of the FAR by not seeking to clarify the acceptance period of INDUS’s proposals. As a final matter, INDUS contends that GSA acted unfairly by not affording it the opportunity to extend the acceptance periods of its proposals as it had done for other offerors. This argument, however, is misplaced. GSA only sought extensions from those offerors whose proposals had been found to comply with the RFP’s requirements, including the provision regarding the minimum acceptance period. As noted above, INDUS’s proposals were excluded from the competition under the terms of the RFP for failing to offer the minimum acceptance period. Since its proposals already had failed the agency’s initial “acceptability review,” and, as a result, had been excluded from the competition as noncompliant, GSA did not engage in unequal treatment of offerors by inviting only those offerors with compliant proposals, and not INDUS, to extend the acceptance period of their proposals. In sum, given the explicit language in the RFP establishing a required minimum acceptance period of 350 days, and in the absence of a timely challenge to this provision, we have no basis to object to the agency’s rejection of protester’s proposals given the language in its cover letters limiting the acceptance period of its proposals to 180 days.  (INDUS Technology, Inc., B-297800.13, June 25, 2007) (pdf)

Finally, SSI contends that the agency improperly decided not to conduct discussions with offerors. SSI asserts that, had discussions been conducted SSI could have addressed the various weaknesses in its proposal.  Where, as here, an RFP provides for award on the basis of initial proposals without discussions, an agency may make award without discussions, unless discussions are determined to be necessary. FAR sect. 15.306(a)(e). While discussions are necessary where the solicitation provides for award on a best value basis and the source selection official is unable to determine without further information which proposal represents the best value to the government, an agency may dispense with discussions where there is a reasonable basis to conclude that the proposal of the intended awardee represents the best overall value. Facilities Mgmt. Co., Inc., B-259731.2, May 23, 1995, 95-1 CPD para. 274 at 8. The contracting officer has broad discretion in deciding whether to hold discussions, which our Office will review only to ensure that it was reasonably based on the particular circumstances of the procurement. Incident Catering Servs., LLC, B-296435.2 et al., Sept. 7, 2005, 2005 CPD para. 193. Here, as discussed above, the agency had a reasonable basis for evaluating proposals, for performing a meaningfully comparison of the those proposals, and for making a determination regarding which proposal offered the best value to the government. See Sierra Military Health Servs., Inc.; Aetna Gov’t Health Plans, B‑292780 et al., Dec. 5, 2003, 2004 CPD para. 55 at 6-7 n.5. The decision not to conduct discussions was reasonable under the circumstances. (Synectic Solutions, Inc., B-299086, February 7, 2007) (pdf)

The protester argues that it is clear from the record that the agency in fact conducted discussions with Offeror A, and that, as a consequence, the agency had an obligation to conduct discussions with all offerors. Bannum cites as evidence that the agency conducted discussions with Offeror A the fact that in its April 4 memorandum to the contracting officer, the evaluation board identified a deficiency in Offeror A’s technical proposal, while in its evaluation report of late May, the board stated that Offeror A’s proposal had no deficiencies. According to the protester, the only explanation for the elimination of the deficiency is that the agency gave Offeror A the opportunity to cure it through discussions. The agency denies that it conducted discussions with Offeror A. According to the agency, the reason that the item was not mentioned as a deficiency in the second evaluation report was that subsequent to the April 4 memorandum, the evaluators decided that it was not actually a deficiency. The agency further argues that even assuming that it had conducted discussions with Offeror A, the protester suffered no prejudice as a result because award was not ultimately made to Offeror A. In its comments on the agency report, Bannum does not rebut the agency’s assertion that it did not conduct discussions with Offeror A. Instead, Bannum disputes the agency’s finding that Offeror A’s proposal did not have a deficiency and the agency’s position that Bannum was not prejudiced as a result of the elimination of the alleged deficiency. Both of these arguments are wholly unpersuasive. First, since Offeror A was not in line for award in any event, any deficiency in its proposal which would have resulted in lowering its rating would have had no effect on the ranking of the offerors. Second, Bannum argues that it was prejudiced by the agency’s failure to recognize the deficiency in Offeror A’s proposal because the agency would not have elected to award on the basis of initial proposals if it had not thought that it had two technically acceptable proposals (i.e., those of Dismas and Offeror A) to trade off against one another in a best value determination. This theory is simply too speculative to warrant questioning the agency’s actions here. (Bannum, Inc., B-298281.2, October 16, 2006) (pdf)

FAR sect. 15.306 describes a spectrum of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are “limited exchanges” between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award. FAR sect. 15.306(d)(3). When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors in the competitive range. FAR sect. 15.305(d)(1). The “acid test” for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to revise or modify its proposal. Park Tower Mgmt. Ltd., B-295589, B-295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CDP para. 79 at 5. The substance of Washington’s proposal regarding the coarse ground beef requirement, i.e. shelf life from pack, price, and delivery, remained unchanged. Instead, the agency suspected, and Washington confirmed, that the term “case ready” had been misapplied to the proposal item describing Washington’s commitment to meet the requirements for “coarse” ground beef. These exchanges were clarifications and not discussions, as they were “limited exchanges” that resolved a minor or clerical error. Washington was not given an opportunity to materially change its proposal because it was clear that the terms and details of the proposal for coarse ground beef did not change, but rather the label applied to those terms and details was corrected. Because all of the evidence in the proposal as submitted indicated that this was a mistaken label, we conclude that the agency reasonably inquired and received clarification from Washington. (National Beef Packing Company, B-296534, September 1, 2005) (pdf)

Eight offerors, including CMR/Anese and ICGM, submitted proposals, which were evaluated by a technical evaluation board. CMR/Anese's proposal, at an offered price of €7.5 million, was rated marginal overall based on satisfactory ratings under the experience and past performance factors and a marginal rating under the schedule factor. ICGM's proposal, at an offered price of €7.9 million, was rated as good-plus overall. The agency determined that ICGM's proposal represented the best value and awarded it the contract without conducting discussions. At its debriefing, CMR/Anese learned that its marginal schedule rating was based on the agency's (erroneous) finding that its North Ramp schedule exceeded the allowed schedule by 5 days. When CMR/Anese showed the agency that, in fact, its North Ramp schedule was fully compliant with the RFP, the agency acknowledged its mistake and suspended the debriefing to reevaluate the protester's proposed schedule. Protest at 4. Upon further review, the agency recognized that it was CMR/Anese's schedule for the Zulu Pad that exceeded the completion date. Specifically, based on the RFP-required assumptions of a start date of September 15, 2004, the 360 days allotted for performance would expire on September 10, 2005. Although CMR/Anese proposed to perform the work in 324 days, a shorter period than the 360 days allowed by the RFP, its CPM schedule showed a start date of October 26, 2004 and a completion date of September 15, 2005, that is, 5 days beyond the assumed completion date. Based on this review, the Navy notified CMR/Anese that its proposal rating remained at marginal. The protester maintains that this evaluation conclusion was unreasonable. Noting that its Zulu Pad schedule had been designated a strength in the evaluation, CMR/Anese asserts that, once the Navy identified the completion date problem and evaluated the proposal as marginal, it was required to open negotiations with the firm. In this regard, the protester states that the perceived problem could have been easily corrected by adjusting the start date for the Zulu Pad. This argument is without merit. There generally is no obligation that a contracting agency conduct discussions where, as here, the RFP specifically instructs offerors of the agency's intent to award a contract on the basis of initial proposals. FAR 15.306(a)(3); Colmek Sys. Eng'g. , B291931.2, July 9, 2003, 2003 CPD 123 at 7. The contracting officer's discretion in deciding not to hold discussions is quite broad. Our Office will review the exercise of such discretion only to ensure that it was reasonably based on the particular circumstances of the procurement. Colmek Sys. Eng'g , supra . We find no circumstances that call into question the agency's decision not to engage in discussions here. Contrary to the protester's assertions, the fact that it may have erroneously entered the wrong start date in its CPM schedule does not give rise to an obligation on the agency's part to hold discussions where discussions are not otherwise necessary. See Omega World Travel, Inc ., B-283218, Oct. 22, 1999, 2002 CPD 5 at 6. (Cooperativa Maratori Riuniti-Anese, B-294747, October 15, 2004) (pdf)

As mentioned in the previous section, the RFP here clearly advised that the agency intended to make award, if possible, on the basis of initial proposals. RFP amend. 5, at 53. The RFPs definition of marginal also advised that it meant that a proposal so rated may be correctable only with a significant re-write of the proposal. Id. at 51. In addition, the SSA here expressly determined that DynCorps marginal proposal was ineligible for award as written due to its significant shortfall in proposed staffing. Put simply, since we find that the Army reasonably concluded that the proposal could not be accepted as written, there was no requirement to consider it further. Tomco Sys., Inc. , B-275551 et al. , Mar. 13, 1997, 97-1 CPD 130 at 4-5. (DynCorp International LLC, B-294232; B-294232.2, September 13, 2004) (pdf)

The contracting officer has broad discretion whether to open discussions. Colmek Sys. Eng’g, B-291931.2, July 9, 2002, 2003 CPD ¶ 123 at 7. Here, the RFP stated that the agency did not intend to open discussions, and the questions issued to AHNTECH were labeled “Clarification Request” and, rather than identify and seek correction of deficiencies or weaknesses, sought clarification of the firm’s proposal. As such, the clarification requests did not constitute discussions. By proposing additional personnel to meet the SOW requirements, AHNTECH, not the agency, disregarded the scope of the clarification process. The firm’s unilateral decision to modify its proposal could not and did not transform the agency’s clarifications into discussions. (AHNTECH, Inc., B-293582, April 13, 2004) (pdf)

Although it is true that the RFP informed offerors that they would be informed of the test results, the solicitation also provided that “[t]he purpose of the test and evaluation is NOT to reveal deficiencies or significant weaknesses for possible remediation through discussions,” and that “[n]o part of a Contractor's proposal will be changed as a result.” RFP at 41-42. As the agency explains, test results were to be provided to offerors for the sole purpose of ensuring that the boats were being operated properly during testing.[2] Contracting Officer's Statement at 3. Given the RFP's warning that remediation would not be permitted, we find no basis to question the agency's decision not to conduct discussions with SeaArk or to permit the firm to redesign its boat or to otherwise remedy the weaknesses identified in testing.  (SeaArk Marine, Inc., B-292195, May 28, 2003)  (pdf)

Clarifications are "limited exchanges" between the government and offerors that may occur when award without discussions is contemplated. Federal Acquisition Regulation (FAR) § 15.306(a)(1). Such exchanges may allow offerors to clarify certain aspects of proposals or to resolve minor clerical errors. FAR § 15.306(a)(2). In contrast to discussions, requesting clarification from one offeror does not trigger a requirement that the agency seek clarification from other offerors.  See Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5; Global Assocs. Ltd., B-271693; B-271693.2, Aug. 2, 1996, 96-2 CPD ¶ 100 at 4. While we recognize that a situation might arise in which it would be unfair to request clarification from one offeror but not from another, here, given that Landoll has failed to explain, and we cannot see, how the protester's competitive position would have been affected if the agency had sought clarification from Landoll, we find no merit to this aspect of Landoll's protest.  (Landoll Corporation, B-291381; B-291381.2; B-291381.3, December 23, 2002)  (pdf) (txt version)

In other words, a clarification may not be used to furnish information required to determine the technical acceptability of a proposal. The course descriptions here, regardless of when written, were required to determine the acceptability of eMind’s proposal; accordingly, they cannot properly be termed clarifications. Moreover, to the extent that the protester is suggesting that the availability of the course descriptions on its website was sufficient to place the agency on notice of them, agencies may evaluate proposals only on the basis of the information presented in them. Microcosm, Inc., B-277326 et al., Sept. 30, 1997, 97-2 CPD ¶ 133 at 6-7. The record shows that eMind did not incorporate or otherwise reference information from its website in its proposal.  (eMind, B-289902, May 8, 2002) (pdf))

Discussions occur when the government communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal or provides the offeror with an opportunity to revise or modify its proposal.  In contrast, clarifications are merely inquiries for the purpose of eliminating minor uncertainties or irregularities in a proposal and do not give an offeror the opportunity to revise or modify its proposal.  Here, the communications in question clearly constituted discussions.  The agency found that certain proposed personnel were “unacceptable” and required SoBran to replace these personnel.  In addition, the agency found that SoBran may not be able to retain personnel in certain “key positions” at the proposed salaries and requested SoBran to address this concern, which SoBran did by raising the salary levels of these positions.  A variety of other concerns about the technical and cost proposal were raised and SoBran amended its technical and cost proposal to address these concerns, including raising its proposed cost by $156,992.  (Priority One Services, Inc. B-288836; B-288836.2, December 17, 2001)

Here, we find that NASA reasonably exercised its discretion to make award on the basis of initial proposals, as provided for by the RFP. It is true that the agency found that LB&B understated its proposed costs and our review found a number of errors in the agency's cost realism evaluation of LB&B's proposal; we also found, however, that the firms' relative cost standing was unaffected by NASA's and our probable cost adjustments. Under the circumstances, the agency had no reasonable doubt as to which offer represented the best value to the government and could make award on initial proposals. See Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 19-20.  (NV Services, B-284119.2, February 25, 2000)

There is no requirement that the agency hold discussions where the solicitation advises offerors of the possibility of award without discussions. FAR sect. 15.306(a)(3); Kahn Instruments, Inc., B-277973, Dec. 15, 1997, 98-1 CPD para. 11 at 8. In such circumstances, the burden is on the offeror to submit an initial proposal containing sufficient information to demonstrate its merits, and an offeror failing to do so runs the risk of having its proposal rejected. Kahn Instruments, Inc., supra. Moreover, an agency is not precluded from awarding on an initial proposal basis merely because an unacceptable lower offer could be made acceptable through discussions. Integration Techs. Group, Inc., B-274288.5, June 13, 1997, 97-1 CPD para. 214 at 6.  (Century Elevator Inc., B-283822, December 20, 1999)

We find no circumstances here that call into question the agency's decision not to engage in discussions. Contrary to the protester's assertions, the fact that its proposal may have contained a mistake does not give rise to an obligation on the agency's part to hold discussions where discussions are not otherwise necessary. Since the agency had properly determined both that Sato had submitted an initial proposal that was technically acceptable and that its offered low price was fair and reasonable, there is no basis for us to object to the Air Force's determination to make award without discussions. Cornet, Inc.; Datacomm Management Servs., Inc., B-270330, B-270330.2, Feb. 28, 1996, 96-1 CPD ¶ 189 at 7.  (Omega World Travel, Inc., B-283218, October 22, 1999)

1. The written communications between [Washington Headquarters Services] WHS and M.C. Dean constitute requests for “clarifications,” which did not obligate WHS to engage in “discussions” with G4S.

As noted above, the core of G4S’s argument is its contention that WHS treated the offerors unequally and unfairly, favoring and leading to the selection of M.C. Dean. Specifically, G4S contends that the communication between WHS and M.C. Dean, which gave M.C. Dean the opportunity to fill supposed gaps in its proposal, amounted to discussions with M.C. Dean rather than clarifications. If this were the case, according to G4S, the agency was obligated under the FAR to engage in discussions with the other offerors including G4S to allow them also to have the opportunity to “fix” their proposals. FAR § 15.306(d)(1); Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 361 (2009) (citing Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1318 (Fed. Cir. 2003) (“ITAC”)). As such, G4S contends that it must be afforded such an opportunity.

Specifically, G4S argues that the March 8-9, 2012 letter exchange between WHS and M.C. Dean, quoted in the statement of facts above, constituted discussions “because the result was that M.C. Dean was subsequently permitted to cure a proposal ‘deficiency.’” Pl.’s Mot. JAR at 18, ECF No. 31. In support of this argument, G4S relies on Int’l Res. Recovery, Inc. v. United States, which states:

Clarifications are not to be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal or otherwise revise the proposal. . . . Discussions, on the other hand, occur when a contracting officer indicates or discusses with each offeror still being considered for award, significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award.

64 Fed. Cl. 150, 162 (2005) (quoting JWK Int’l Corp. v. United States, 52 Fed. Cl. 650, 661 (2002)) (emphasis removed).

Whether the agency conducted discussions with M.C. Dean turns on whether M.C. Dean’s proposal contained “deficiencies” which could only be corrected through revisions to its proposal. As discussed above, the solicitation required that the proposed Senior Systems Administrator meet the IAT Level II certification. It also required that the contractor provide a warranty period for software and equipment of at least one year. M.C. Dean’s proposal did not expressly make these assurances. In the two letters constituting the exchange, WHS asked and M.C. Dean confirmed that M.C. Dean’s proposed Senior Systems Administrator, Mr. * * *, had the requisite IAT Level II certification and that M.C. Dean would provide the needed warranty.

G4S contends that the exchange between M.C. Dean and WHS amounted to discussions because the exchanges provided M.C. Dean the opportunity to “revise” its proposal to confirm that its Senior Systems Administrator had the required certification and that it would provide the necessary warranties. G4S asserts that WHS was aware that M.C. Dean’s proposal had “deficiencies” because WHS specifically determined that other offerors, including * * * had “deficiencies” in their proposals because they had failed to demonstrate that their proposed Senior Systems Administrators had the needed certification. AR 1797, 1803, 1817. Similarly, G4S argues, WHS determined that * * *proposal contained a deficiency because it did not address a warranty period. AR 1820. G4S argues based on these facts that the agency’s decision to communicate with M.C. Dean and no other offeror “constitutes impermissible preferential treatment” and that the award should be set aside. Pl.’s Mot. JAR at 20 (citing Ashbritt, Inc. v. United States, 87 Fed. Cl. 344, 372 (2009) (“The Government may not inform some offerors of a concern with their pricing level while staying silent with respect to identical issues in other offerors’ proposals.”)).

The government and M.C. Dean argue, in response, that the communications between WHS and M.C. Dean were not “discussions” within the meaning of the FAR, which defines “discussions” as:

Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.

FAR § 15.306(d). Instead, they argue, the communications between WHS and M.C. Dean sought mere clarifications, which the FAR defines as “limited exchanges, between the Government and offerors” that give offerors “the opportunity to clarify certain aspects of proposals. . . or to resolve minor or clerical errors.” FAR §15.306(a)(1)-(2). They argue that the reason the proposed Senior Systems Administrator’s certifications and warranties were not identified as “deficiencies” in M.C. Dean’s proposal but as “deficiencies” in other offerors’ proposals is because M.C. Dean, in contrast to the others, had addressed the requirement in its proposal but that the proposal was simply not clear. Since the communications constituted clarifications and not discussions, the government and M.C. Dean contend, WHS was not obligated to engage in any “discussions” with G4S under the FAR.

In this case, the court agrees with the government and M.C. Dean that the communications between M.C. Dean and WHS merely sought and provided confirmation of information already present in M.C. Dean’s proposal and were therefore not “discussions.” Instead, they were “clarifications.” A close review of the record demonstrates that in contrast to those provided by * * *, the resume M.C. Dean submitted for its proposed Senior Systems Administrator, Mr. * * *, contains all the information necessary for WHS to reasonably conclude that Mr. * * * held the required IAT Level II certification as defined by the DOD. While not explicitly stating the IAT Level II certification by name, the resume contained all the individual components and background information required to obtain such a certification. AR 1217-18. The proposals submitted by * * * and * * * had little or no relevant information for WHS to rely upon as a basis for a mere clarification. These omissions could only have been remedied through revisions to the proposals afforded by discussion. Similarly, as reproduced above, the information M.C. Dean provided to WHS regarding its proposed warranty, while not restating the explicit requirements of the solicitation, demonstrated its intent to provide the requisite warranty period. M.C. Dean’s proposal stated that the “* * *.” AR 1494. WHS’s letter sought only to clarify that this language meant that the manufacturers in providing support would be providing “warranties” as required by the solicitation. * * *, on the other hand, provided no information related to a proposed warranty period and did not address the relevant paragraph from the PWS. AR 1820, 1954-55.

In concluding that WHS engaged only in seeking “clarifications” from M.C. Dean, the court also notes that WHS is entitled to deference with regard to its characterization of its communications. ITAC, 316 F.3d 1323. Here WHS repeatedly noted in its letter to M.C. Dean that it sought “clarifications” and at no point used the word “discussion.” AR 1493-94. Indeed, as discussed above, the “term ‘discussion’ has a specific legal definition: discussions involve negotiations and are undertaken with the intent of allowing the offeror to revise its proposal.” Galen Medical Assocs. Inc. v. United States, 369 F.3d 1324, 1332 (Fed. Cir. 2004) (internal quotations and citations omitted). There is no evidence on the record to suggest that any negotiations took place. Most importantly, there is no evidence on the record to suggest that M.C. Dean was given the opportunity to revise its proposal. As discussed above, in its two-page letter to WHS, M.C. Dean merely explained the information already included in its proposal. Namely, M.C. Dean’s letter states that Mr. * * *’s resume demonstrates that he had the requisite IAT Level II certification. See ITAC, 316 F.3d at 1323 (holding that the agency’s request for clarification of subcontractor’s relevant experience is only a clarification). As for the warranty, M.C. Dean’s letter explains M.C. Dean’s proposal’s compliance with the warranty requirements and the requisite warranty period. The narrow communication as to the offered warranty period does not amount to a revision.

In view of the foregoing, the court finds that WHS had no obligation to engage in discussions with G4S. As discussed infra, the issues WHS raised with respect to G4S’s proposal—1) failure to propose firm-fixed price for the Mark Center work (AR 1878, 1880), 2) failure to offer all required preventative maintenance (AR 1879), and 3) failure to include “manual data input of existing data” (AR 1879)—all would have required G4S to revise its proposal in order to have been considered for award. In such circumstances, G4S’s motion for judgment on the administrative record with regard to its right to correct its proposal through discussions with WHS must be denied. WHS did not conduct discussions and therefore was not obligated to give G4S the opportunity to revise its proposal to address WHS’s concerns.  (G4S Technology CW LLC, v. U. S. and M.C. Dean, Inc., No. 12-705C, March 12, 2013)  (pdf)

B.  The Disqualification of Allied’s Proposal1.

Allied argues that the RFQ unambiguously requires the Contracting Officer to engage in discussions with an offeror who takes exception to any terms in the contract, before the Contracting Officer may properly disqualify such an offeror from consideration. This is based primarily on the phrase italicized below from an RFQ section titled “Part 4 – Additional Documents”:

Any Terms and Conditions that are considered unacceptable by the Government and cannot be resolved may result in the Offeror being removed from consideration.

(emphasis added). Allied interprets this to mean that exceptions “would not be grounds for disqualification unless the conflicts as a whole were thought to be significant enough to warrant disqualification (‘may’) and could not be resolved through discussions (‘cannot be resolved’).” Br. of Allied at 22.

Appellees counter that two provisions unambiguously give the Contracting Officer the discretion over whether to engage in discussions. First, in the general quote instructions, the RFQ states:

[I]nitial offers shall contain the Offeror’s best offer from a technical and price standpoint. The Government, however, reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary.

(emphasis added). Second, in a section titled “5.0 Discussions,” the RFQ stated:

The Government intends to make an award on the basis of initial quotations without the use of discussions. Offerors should therefore submit their most advantageous quote in response to the initial solicitation. However, the Government reserves the right to use discussions after receipt of quotations if it is considered in the Government’s best interests to do so.

(emphases added). Appellees further argue that Allied’s interpretation would create a patent ambiguity in the contract—between giving the Contracting Officer the discretion to engage in discussions, but requiring the Contracting Officer to engage in discussions in the case of exceptions—which Allied cannot challenge under the holding of Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007) (considering a disap-pointed bidder’s argument on the basis of a patent ambiguity waived for failure to raise it prior to bidding).

Allied makes two arguments in response. First, Allied argues that the Appellees’ interpretation would fail to give meaning to the “cannot be resolved” phrase in the RFQ. Second, Allied argues that that phrase was added in response to Allied’s comments on the draft RFQ. These arguments are unpersuasive.

The relevant provision of the Draft RFQ read:

The offeror shall include a copy of any Master Subscription Agreement (MSA), Service Level Agreement (SLA) or any other documentation that the offeror will request the Government to sign in order to receive the offeror’s services. The offeror shall highlight any provisions that conflict with the Terms and Conditions outlined in Document B. Conflicting provisions will be considered as exceptions to the Terms and Conditions of the RFQ.

In response, Allied stated:

The draft RFQ requires offerors to high-light any provisions in an MSA or SLA that conflict with the Terms and Conditions in Document B, but states that such conflicting provisions will be considered exceptions to the Terms and Conditions in the RFQ. This language does not allow for consideration of alternative terms that meet the agency’s needs and suggest that an offeror runs the risk of a proposal being found nonresponsive if any terms in an offeror’s standard MSA or SLA are high-lighted as directed.

The DOJ then added the following:

These documents will be reviewed by the Government. Any Terms and Conditions that are considered unacceptable by the Government and cannot be resolved may result in the Offeror being removed from consideration.

Allied argues that the only reasonable reading of the amendment is that DOJ wanted to prevent offerors from being found nonresponsive, and so, required discussions. This court disagrees.

The RFQ unambiguously gives the Contracting Officer the discretion over whether to engage in discussions, as seen from the emphasized provisions above. Under Allied’s reading, such discretion is eliminated by the offeror’s initiative to take exceptions or propose additional terms that the government would find unacceptable. In other words, Allied would allow the Contracting Officer discretion to engage in discussions only when the offer exactly conformed to the RFQ, a situation which would be unlikely to be “unacceptable [to] the Government.” How-ever, the “cannot be resolved” provision is activated only when the additional terms are considered unacceptable by the government. Thus, Allied’s interpretation fails to give meaning to the provisions above, reserving to the Con-tracting Officer the discretion to engage in discussions, and is therefore an improper reading of the RFQ. See, e.g., Burnside-Ott Aviation Training Ctr. v. Dalton, 107 F.3d 854, 860 (Fed. Cir. 1997) (“A contract must be inter-preted as a whole in a manner that gives reasonable meaning to all its parts and avoids conflicts in, or surplusage of, its provision.”).

The DOJ did not remove the objected to provisions; the final RFQ, like the draft, required offerors to highlight any provisions in an MSA or SLA that conflicted with the terms and conditions of the RFQ, and categorized such conflicting provisions as exceptions. Allied, through its comments, has already acknowledged that these provi-sions may reasonably be read to allow disqualification where “alternative terms” are proposed in the offer. There is nothing in the added language that necessarily changes the effect of those provisions. The added lan-guage does not mention discussions, nor define what is required before the government may properly determine that terms in the offer are unacceptable. Instead, the DOJ answered Allied’s objection, warning offerors that a bid proposing alternative terms may well result in its removal from consideration.

In light of this, a reasonable reading of the “cannot be resolved” phrase may be to require discussions where additional terms are proposed, but maintain as exceptions (and thus allow disqualification) conflicting terms be-tween the RFQ and the submitted additional documents. This interpretation is consistent with the rest of the RFQ, which requires offerors to “submit their most advanta-geous quotes,” and their “best offer from a technical and price standpoint” and retains the Contracting Officer’s discretion over whether to engage in discussions. We need not go so far as to definitively opine on the meaning of that phrase; it is enough to note that it does not require the Contracting Officer to engage in discussions before disqualifying an offer from consideration.

On a more practical level, the RFQ explicitly states that offerors should submit “complete and acceptable quote[s],” i.e. those which “accept[] each of the require-ments, provisions, terms and conditions, and clauses stated in all sections of this RFQ.” It makes little sense to reward contractors who choose to submit proposals that fail to conform to the RFQ by requiring the government to engage in discussions with them.  (Allied Technology Group, Inc. v. U. S., No. 2010-5131, June 9, 2011)  (pdf)

We reject appellant’s argument that the ENs could not be clarifications because they “requested additional information.” Any meaningful clarification would require the provision of information, and the example of a clarification given in the regulation, “the relevance of an offeror’s past performance information,” requires the provision of information. Id. The appellant also contends that a clarification cannot call for new information if the information is “necessary to evaluate the proposal.” There is no requirement in the regulation that a clarification not be essential for evaluation of the proposal. As one commentary has observed, under the new regulations, “‘clarifications’ by one offeror could lead to an increase in its past performance score or perhaps tilt the award in its favor.” John S. Pachter et al., The FAR Part 15 Rewrite, 98-05 Briefing Papers 1, 6 (1998).  Appellant’s cramped conception of “clarification” is, moreover, not in harmony with the stated purpose of the 1997 amendments, which was to “[s]upport[ ] more open exchanges between the Government and industry, allowing industry to better understand the requirement [sic] and the Government to better understand industry proposals.” 62 Fed. Reg. at 51,224.