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FAR 15.307:  Final proposal revision 

Comptroller General - Key Excerpts

Gunter argues that the Army received but improperly failed to evaluate the firm’s [final proposal revision] FPR. Even if not, Gunter argues the instructions for submitting FPRs contained a latent ambiguity regarding the first addressee’s e-mail address because they used a font that did not distinguish between the lowercase “L” and the numeral “1” in the address. Protest at 3. Gunter also argues that its FPR arrived at the Army’s designated depository (the [Army Aviation and Missile Research Development and Engineering Center] AMRDEC [Safe Access File Exchange] SAFE system) and notification of its availability arrived with the second addressee, so the Army’s failure to evaluate the FPR was due to mishandling by the Army’s systems or personnel. Protest at 4‑5.

The Army counters that the FPR submission instructions in the discussions letter were clear or, at worst, constituted a patent ambiguity. Therefore, the Army maintains, it was Gunter that failed to request clarification of (or to file a protest about) the proper addresses to notify upon submitting its FPR through the AMRDEC SAFE system. AR at 17-18.

The second contracting officer (who was the second addressee) explains that although the AMRDEC SAFE system notified him that a document had been submitted for retrieval, he did not open the notification e-mail and did not retrieve Gunter’s FPR. AR, Tab 12, Declaration of Second Addressee, at 1-2. He states that although he had been assigned to this RFP as the contracting officer when discussions were being held, he had been reassigned to other duties by the time that FPRs were due, and he was not aware that the contracting officer had provided his e-mail address (rather than her own) for FPR submissions. Id. Furthermore, he did not communicate with the responsible contracting officer or contracting specialist about his receipt of the notice about Gunter’s FPR until after award, on September 1. Id. at 2.

Ultimately, the Army argues, even if the agency mishandled or lost Gunter’s FPR, it is no longer possible to know with certainty the contents of the FPR submission because the AMRDEC SAFE system performed as designed: it destroyed the FPR submission 14 days after it was submitted. AR at 13.

Agencies have a fundamental obligation to have procedures in place not only to receive proposals, but also to reasonably safeguard the proposals received, and to give them fair consideration. S.D.M. Supply, Inc., B-271492, June 26, 1996, 96‑1 CPD ¶ 288 at 4, recon. denied, Dep’t of the Army--Recon., B-271492.2, Nov. 27, 1996, 96-2 CPD ¶ 203; see also Federal Acquisition Regulation (FAR) § 15.207. However, as a practical matter, even with appropriate procedures in place, an agency may lose or misplace a proposal. We have held that such an occasional loss--even if it occurs due to negligence of the agency--generally does not entitle the bidder or vendor to relief. Id.; Interstate Diesel Serv., Inc., B‑244842.2, Sept. 27, 1991, 91-2 CPD ¶ 304 at 2. Thus, for example, we have held that an agency’s rejection of a quotation was reasonable where the protester e‑mailed its quotation to the agency, but the agency never actually received the submission before the deadline. Turner Consulting Group, Inc., B‑400421, Oct. 29, 2008, 2008 CPD ¶ 198 at 4.

The Army does not dispute that Gunter delivered its FPR to the agency system designated for receipt of FPRs a day before it was due. Even though Gunter’s effort to notify one contracting official was unsuccessful, the firm used the system to notify one of the agency officials properly. AR Tab 12, Declaration of Second Addressee, at 1. Since it was apparently following the instructions in the discussions letter, Gunter did not attempt to send a notification to one of the addressees listed in amendment 3. Nevertheless, we need not consider whether Gunter bears the responsibility for failing to perceive the ambiguity in the intended e-mail address for the first addressee because we conclude that Gunter submitted its FPR to the Army, and properly notified the agency through the second addressee, in compliance with the contracting officer’s direction.

The second addressee has provided no reasonable explanation for failing to open the AMRDEC SAFE notification e-mail, which stated that a sender from a Gunter Construction e-mail address had submitted a “Fort Polk JOC BAFO” for him. Id. at 2 (copy of August 4 AMRDEC SAFE notification e-mail). The Army’s explanation for failing to retrieve Gunter’s FPR (which the Army should have been expecting) is thus unreasonable. Likewise the failure of the contracting officer to contact that colleague promptly is also unreasonable--particularly because she had instructed offerors to submit their FPRs to him, rather than to herself, and could have asked whether the expected FPR from Gunter had reached him. We also recognize that if Gunter had attempted to follow the FPR submission instructions in amendment 3, instead of those in the discussions letter, it is likely that notification of the FPR would have reached the contracting officer. Under these circumstances, however, we conclude that the Army received the protester’s FPR, but failed to use reasonable procedures to preserve and evaluate it. See Dep’t of the Army--Recon., supra (affirming sustained protest where protester’s quotation was submitted to agency computer system but not evaluated because contracting officer was not notified of its receipt).

Nevertheless, we do not sustain the protest because the AMRDEC SAFE system destroyed the only copy of Gunter’s FPR. As noted previously, even where an agency negligently destroys an offeror’s proposal, that fact does not entitle the bidder or vendor to relief. Project Resources, Inc., B‑297968, Mar. 31, 2006, 2006 CPD ¶ 58 at 2 (denying protest where agency signed for but then lost proposal). This result is justified by the unique circumstances arising in protests concerning lost information. Id. The only means generally available to establish the content of lost information is for the protester to reconstruct that information, but allowing an offeror to establish the content of its lost proposal after the closing date has passed would be inconsistent with maintaining a fair competitive system. Id.

Nevertheless, when deciding whether to exercise options under the contract, the Army may wish to consider, among the “other factors” under FAR § 17.207, whether the integrity of the procurement system and the potential for significantly lower prices would justify holding a new competition for the remainder of the JOC requirement.

The protest is denied.  (Gunter Construction, Inc. B-412039: Nov 30, 2015)  (pdf)


RAM asserts that the Army was required to reopen discussions to address the significant weakness regarding the protester’s proposed approach to TAR 9. As discussed below, we find no merit to this argument.

Discussions, when conducted, must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for receiving award. Serco Inc., B-405280, Oct. 12, 2011, 2011 CPD ¶ 237 at 11. However, agencies are not required to reopen discussions to afford an offeror an additional opportunity to revise its proposal where a weakness or deficiency is first introduced in the firm’s revised proposal. MetalCraft Marine, Inc., B-410199, B-410199.2, Nov. 13, 2014, 2014 CPD ¶ 338 at 10; Raytheon Co., B-403110.3, Apr. 26, 2011, 2011 CPD ¶ 96 at 7.

The Army’s concern regarding RAM’s proposed deviation from the staffing matrix for TAR 9 was not based on any information in the protester’s proposal predating discussions. Rather, the agency’s concern was based on new information introduced by RAM in its revised proposal responding to the amended RFP. As set forth above, on July 18, the Army issued written discussion questions to RAM. AR, Tab 20, EN to RAM (July 18, 2014), at 1. The agency also simultaneously amended the RFP, including a requirement for offerors to address any proposed deviations from the agency’s staffing matrix for TARs 9 through 12. Id. Prior to the July 18 RFP amendment, offerors were not required to provide a detailed narrative explaining the basis for their staffing approaches to TARS 9 through 12. On August 4, RAM submitted a response addressing its deviation from the staffing matrix for TAR 9. AR, Tab 67, RAM TAR 9 Methodology (Aug. 4, 2014). RAM points to no information in its proposal predating its August 4 submissions that should have put the agency on notice of the issues raised by RAM’s staffing approach that formed the basis of the agency’s subsequent concern.

We do not find that the agency was required to reopen discussions with RAM to address concerns raised by information the company first submitted in response to the RFP amendment that was issued simultaneously with the written discussion questions. When, as here, an offeror introduces defects into its proposal in a revised proposal, it runs the risk that the agency will exercise its discretion not to reopen discussions. EDO Corp., B-296861, Sept. 28, 2005, 2005 CPD ¶ 196 at 10 n.4. Accordingly, this protest ground is denied. 
(Research Analysis & Maintenance, Inc. B-410570.6, B-410570.7: Jul 22, 2015)  (pdf)


Active Headsets raises four primary challenges to DLA’s conducting of the reverse auction and resulting award decision. First, the protester alleges that Acousticom failed to participate in the reverse auction, thus rendering the awardee ineligible for award under the terms of the RFP. See Protest at 6-7. Second, the protester alleges that the auction system provided misleading information because it designated the protester as the “lead” bidder with regard to certain aspects of its bid, and, thus effectively induced the protester into not placing additional bids. See id. In a related allegation, Active Headsets argues that the auction website’s use of the undefined data field “start price” was ambiguous and did not advise offerors that the agency would pre-load offerors’ prices from their initial proposals as the starting bids for the reverse auction. See Protester’s Response to Request for Dismissal (Nov. 18, 2014) at 2. Finally, the protester alleges that, notwithstanding that a reverse auction was conducted, DLA made its award decision based on the offerors’ initial proposals, in violation of DLAD clause 52.215-9023(a), which states that the reverse auction will be used “to establish the final offered prices from each Offeror.” See Protest at 6-7.

In reviewing a protest challenging an agency’s evaluation, our Office will not reevaluate proposals, nor substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency’s discretion. Management Sys. Int’l, Inc., B-409415, B-409415.2, Apr. 2, 2014, 2014 CPD ¶ 117 at 5. Rather, we will review the record only to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria and with applicable procurement statutes and regulations. Id. Here, we find that the record supports the reasonableness of the agency’s conducting of the reverse auction and resulting award decision.

First, contrary to the protester’s argument, the record provided by DLA establishes that Acousticom participated in the reverse auction. AR, Tab 11, Procurex Event Bidding Detail Report, at 2. In fact, both the awardee and the protester completed the registration for the reverse auction. Id. As discussed below, neither party submitted a bid during the reverse auction, and the protester does not cite to any requirement in the solicitation or DLAD that required offerors to place any bids during the auction. Thus, there is no basis to find that the awardee should have been eliminated from the competition on the ground that it failed to participate in the reverse auction.

Second, the record demonstrates that the reverse auction system utilized by DLA put bidders on notice regarding the status of their bids, as required by DLAD clause 52.215-9023(e). That clause requires that the system designate offers either as “lead,” meaning the current low price in the auction, or “not lead,” meaning not the current low price in the auction. RFP at 28. Here, the system contained a link titled “View Lead/Not Lead Bidder,” which showed a bidder’s current bid, the lowest bid, and the bidder’s relative position, i.e., “lead” or “not lead”. See AR, Tab 12, Screenshots from Procurex System, at 2, 3.[2] Although the system indicated that the protester was the “lead” bidder with regard to the escalation years, it also showed that for the overall contract, Active Headsets’ bid was “not lead.” Id. at 2. Thus, the system adequately put the protester on notice that it was not the “lead” bidder for the overall price.

Also, the record shows that bidders were on notice that their initial proposed prices would be utilized as the starting bids for the reverse auction. The initial email that Active Headsets received after registering with the auction system stated: “Your Solicitation response price(s) will be pre-entered by the DLA Buyer as part of the event set up.” AR, Tab 10, Email from Procurex System Administrator (Sept. 11, 2014), at 1. In light of this express notice and the fact that the system clearly reflected that Active Headsets was not the overall “lead” bidder, we do not think that the data field “start price” was ambiguous. On this record, we conclude that the protester was on notice that it was not the overall lead bidder, and that the offerors’ initial proposals would be pre-loaded as the starting bids for the reverse auction.[3]

Finally, Active Headsets contends that DLA improperly used the offerors’ prices from their initial proposals, and did not obtain bids through the reverse auction. The only price bids received by the agency, however, were those contained in the offerors’ initial proposals, as neither party placed any bids during the reverse auction or otherwise revised their initial proposals in response to the agency’s request for final proposal revisions. See AR, Tab 11, Procurex Event Bidding Detail Report, at 2 (reflecting that each bidder made only one bid, which were the offerors’ pre-loaded initial proposals); AR, Tab 14, Email from CO (Oct. 30, 2014), at 1. As no bids other than the offerors’ initial proposals were received, the agency reasonably used the offerors’ initial pricing as the basis for its evaluation and award. To the extent the protester argues that the failure to receive additional bids during the reverse action violated the terms of DLAD clause 52.215-9023, we do not find this argument to present a valid basis for protest. That clause provides that an “offeror’s final auction price at the close of the reverse auction will be considered its final proposal revision.” DLAD clause 52.215-9023(f). We are not aware of any requirement, and the protester cites to none, that an offeror must submit a revised proposal in the absence of any change to the terms of the solicitation. Here, both the awardee and protester stood behind their originally submitted proposals.
Hughes argues that allowing Artel to submit a revised quotation is an “improper effort to give Artel an unfair competitive advantage by giving Artel an opportunity to cure its proposal deficiencies after the completion of the competition.” Protest at 2. Because SSA did not revise the solicitation, Hughes maintains that the “proper remedy” would be for the agency to reevaluate quotations as originally submitted, find Artel technically unacceptable, and issue the task order to Hughes. Id. at 3.

Contracting officers in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. The Matthews Group, Inc. t/a TMG Constr. Corp., B-408003.2, B-408004.2, June 17, 2013, 2013 CPD ¶ 148 at 5; Domain Name Alliance Registry, B-310803.2, Aug. 18, 2008, 2008 CPD ¶ 168 at 8. As a general matter, the details of a corrective action are within the sound discretion and judgment of the contracting agency. Rockwell Elec. Commerce Corp., B-286201.6, Aug. 30, 2001, 2001 CPD ¶ 162 at 4. We generally will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Networks Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD ¶ 173 at 3. Where an agency has reasonable concerns that there were errors in the procurement, corrective action may appropriately include reopening discussions and requesting revised proposals before reevaluating. Consortium HSG Technischer Service GmbH and GeBe Gebäude-und Betriebstechnik GmbH Südwest Co., Management KG, B-292699.4, Feb. 24, 2004, 2004 CPD ¶ 44 at 3; Main Bldg. Maint., Inc., B-279191.3, Aug. 5, 1998, 98-2 CPD ¶ 47 at 3.

Here, SSA reports that subsequent to its review of Hughes’ initial supplemental protest, the agency determined that language in Artel’s quotation related to the vendor’s experience was “sufficiently ambiguous to warrant further clarifications.” Legal Memorandum at 3. According to the agency, whether Artel met the RFQ’s experience requirements was “open to interpretation,” which created a concern that there were errors with the procurement. Id. at 4. Thus, to ensure a “fair and impartial competition,” SSA explains that it allowed both vendors to revise their quotations. Id.

In our view, the corrective action taken here is well within the broad discretion afforded to contracting agencies.[4] Because it was not clear to SSA whether the awardee met certain RFQ experience requirements, the agency had a reasonable basis to seek revised quotations from the firm. To ensure a fair competition, Hughes was also provided an opportunity to revise its quotation. We disagree with Hughes’ contention that the corrective action only benefits Artel because, as Hughes complains, the firm already met the RFQ’s experience requirements and cannot improve its competitive position. See Protest at 2. In this regard, the protester--having previously been provided the agency’s original post-award debriefing--has the opportunity to submit an improved technical quotation and make price adjustments as it deems necessary.[5]

Moreover, the corrective action here is not contrary to the evaluation scheme outlined in the RFQ, as Hughes argues. See Supp. Protest at 2; Comments at 6. In this respect, the agency maintains that its reevaluation of quotations will be in accordance with the RFQ’s three-phase evaluation process, and Hughes has not demonstrated otherwise. Legal Memorandum at 7. Further, though Hughes complains that Artel is being given a “second opportunity to pass” phase 1,[6] the protester has not shown that the solicitation precludes the agency from seeking clarifications or revised quotations as part of corrective action.[7] See Supp. Protest at 3. Indeed, given that the apparent impropriety in the evaluation of Artel’s experience brought into question the integrity of the procurement process as a general matter, we see nothing objectionable in the agency’s decision, essentially, to conduct a new evaluation. See generally MayaTech Corp., B-400491.4, Feb. 25, 2009, 2009 CPD ¶ 55 at 2; Patriot Contract Servs., LLC, et al., B-278276.11 et al., Sept. 22, 1998, 98-2 CPD ¶ 77 at 4.  (Hughes Network Systems, LLC, B-409666.3, B-409666.4: Aug 11, 2014)  (pdf)


Meaningful Discussions

ManTech asserts that the agency failed to provide it with meaningful discussions with respect to the agency’s concern regarding ManTech’s high proposed labor rate discounts (reductions from its GSA Logworld rates) in its FPR. Since the labor rate discounts in its initial proposal were lower than its incumbent rates under its prior Logworld order and those in the independent government estimate, ManTech argues that the agency was required to raise the issue in discussions before assigning it a major risk in the evaluation of FPRs.

Discussions, when conducted, must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for receiving award. Serco Inc., B-405280, Oct. 12, 2011, 2011 CPD ¶ 237 at 11. However, agencies are not required to reopen discussions to afford an offeror an additional opportunity to revise its proposal where a weakness or deficiency is first introduced in the firm’s revised proposal. Raytheon Co., B-403110.3, Apr. 26, 2011, 2011 CPD ¶ 96 at 7.

Vendors were required to propose a comprehensive matrix of their GSA Logworld labor categories showing the negotiated GSA price for government and contractor sites and discounted prices offered to DOS to be used in the calculation of optional CLINs. RFQ at 22; ManTech SAR COS at 2. In addition, vendors were required to propose volume discounts from their GSA labor rates for fixed-price CLINs. ManTech SAR COS at 3.

In its initial proposal, ManTech’s optional CLIN rates included discounts ranging from [deleted]% to [deleted]% below its GSA Logworld rates, and fixed-price volume discounts (covering 65 individual base and option year rates) ranging from [deleted]% to [deleted]% in the base year. ManTech SAR COS at 2, 5-6. Although, the evaluators found ManTech’s proposed rates lower than its incumbent Logworld order rates and its discounts higher than its incumbent discounts, they did not identify any concerns because the rates and discounts were consistent with those of other vendors. Id. at 3. (They were concerned that ManTech’s staffing plan was inadequately supported and raised that matter with the firm in discussions. Id. at 4.)

In its FPR, ManTech increased its labor hours by approximately 40% without increasing its overall price. Instead, while keeping its optional CLIN rates the same, it significantly increased its discount rates. In this regard, of the 65 different rates, 20 reflected a 14% to 30% increase in discount rates over the initial proposal; 24 reflected an increase of 5% to 9%; and the remaining 21 remained unchanged. ManTech SAR COS at 5-7. For example, the base year discount rate for CLIN X002 increased from [deleted]% in its initial proposal to [deleted]% of its GSA rates in its FPR, and the option years 1 and 2 discount rates for CLIN X006 increased from [deleted]% to [deleted]% and from [deleted]% to [deleted]%, respectively. Id. at 5. In addition to being significantly higher than the discount rates in ManTech’s initial proposal, the TET found the discounts to be significantly higher than those proposed by other vendors, and thus assigned the firm a risk in the evaluation. Id. at 7.

Thus, the record indicates that the agency’s concern with respect to ManTech’s proposed discount rates first arose when, in its FPR, ManTech substantially increased the discounts. Because ManTech’s increased discount rates did not appear until the firm introduced them in its FPR, the agency was under no obligation to reopen negotiations in order to address them with the firm. See Raytheon Co., supra. Thus, there is no basis to conclude that discussions with ManTech were not meaningful.  (URS Federal Services, Inc.; ManTech Telecommunications and Information Systems Corporation, B-408678.5, B-408678.6, B-408678.7: Jun 20, 2014.)  (pdf)


The RFP, as amended, set the closing date for receipt of proposals as July 28, 2010. On July 27, 2010, a third offeror filed a protest with our Office objecting to various terms of the solicitation. Both ISS and MLS proceeded with submission of their proposals, but the agency did not evaluate them due to the pending protest. After considering the protest, the agency issued an amendment to the RFP that reopened the solicitation and set a new closing date. The new closing date was subsequently extended to October 29, 2010, and all three offerors submitted timely proposals.  (Sections deleted)  On April 1, 2011, the Navy made award to MLS.

(Sections deleted)

First, ISS argues that given the amount of time that elapsed between offerors’ submission of their proposals and the award, the agency should have permitted offerors to update their proposals. In this connection, the protester argues that agency contracting officials knew that some of its proposed key personnel had left its employ and that the portion of its proposal addressing its organizational structure/key personnel therefore required revision. ISS also argues that given the passage of time, the agency should have required offerors to update their past performance information.


The protester’s argument has no merit. Agencies are not required to provide for the submission of revised proposals merely because of the passage of time. Highmark Medicare Servs., Inc.; Cahaba Gov’t Benefit Adm’rs, LLC; Nat’l Gov’t Servs., Inc., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 11 n.10; System Planning Corp., B-244697.4, June 15, 1992, 92-1 CPD ¶ 516 at 5. Moreover, it is clear from the record that allowing the protester to update the portions of its proposal addressing key personnel and past performance would have had no material impact on the rating of the proposal as technically unacceptable given that the unacceptable rating was based on findings unrelated to these areas. Contrast DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261; Panacea Consulting, Inc., B-299307.4, B-299308.4, July 27, 2007, 2007 CPD ¶ 141; and G. Marine Diesel, B-232619.3, Aug. 3, 1989, 89-2 CPD ¶ 101. Thus, the protester suffered no prejudice as a result of the agency’s failure to permit it to update the key personnel and past performance information in its proposal.  (Inchcape Shipping Services Holding, Ltd., B-403399.3,B-403399.4, Feb 6, 2012)  (pdf)


On March 22, Power Connector filed a protest with our Office challenging the award to Newberger. On April 14, the agency advised our Office that it would take corrective action by canceling the award to Newberger, issuing a revised solicitation, and seeking revised proposals; based on this notice, we dismissed the protest.

On April 26, UNICOR issued amendment No. 0006. As relevant here, the amendment revised the criteria for the evaluation of past performance, and provided additional information concerning the evaluation of offerors' bid samples in connection with the ability to meet specifications factor. With regard to past performance, amendment No. 0006 stated that relevant past performance was defined as "providing leather items," and recent performance was defined as "completed in the last 5 years." RFP amend. 6 at 1; see also id. at 5, revised form FPI 999.999-9. The amendment advised offerors that "[a]ll pricing proposals have already been submitted, and will be utilized to conduct the evaluation of offers for award" and that "[n]o new pricing proposals are requested." Id.

DISCUSSION

Power Connector argues that RFP amendment No. 6 materially changed the past performance evaluation criteria, but also improperly precludes offerors from revising other aspects of their proposals, such as price. The protester states that in light of the changed past performance criteria, it would revise its price.

In negotiated procurements, CO's have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. Intermarkets Global, B-400660.10, B-400660.11, Feb. 2, 2011, 2011 CPD para. 30 at 3. An agency's discretion in the area of corrective action extends to deciding the scope of proposal revisions, and there are circumstances where an agency may reasonably decide to limit revisions offerors make to their proposals. See, e.g., Computer Assocs. Int'l, Inc., B-292077.2, Sept. 4, 2003, 2003 CPD para. 157 at 5. However, where an agency amends a solicitation and permits offerors to revise their proposals, our Office has held that offerors should be permitted to revise any aspect of their proposals--including those that were not the subject of the amendment--unless the agency demonstrates that the amendment could not reasonably have an effect on other aspects of the proposals, or that allowing such revisions would have a detrimental impact on the competitive process. Cooperative Muratori Riuniti, B-294980.5, July 27, 2005, 2005 CPD para. 144 at 7; Lockheed Martin Sys. Integration-Owego; Sikorsky Aircraft Co., B-299145.5, B-299145.6, Aug. 30, 2007, 2007 CPD para. 155 at 5.

UNICOR cites three bases for limiting the extent to which proposals may be revised. As discussed below, we conclude that none of these arguments provide a reasonable basis for limiting offerors' proposal revisions to the area of past performance.

First, UNICOR contends that amendment No. 0006 did not make a material change to the RFP's evaluation criteria, but instead merely clarified the requirement for recent and relevant past performance information. In our view, however, the amendment did more than clarify the past performance factor. As noted above, the amendment changed the evaluation factor by defining relevant and recent contracts as those for leather items that were completed by the offeror in the last 5 years. This revised evaluation scheme is clearly different from the scheme set forth in the original RFP, which did not limit relevant performance to providing leather items, and which did not contain a specific time frame for evaluation. We conclude that the amendment made a material change to the evaluation scheme, because the depth and quality of past performance contract experience that would be rated favorably was changed. Cf. Mantech Advanced Sys., Int'l, Inc., B-240136, Oct. 26, 1990, 90-2 CPD para. 336 at 5 (relaxation of level of experience for one offeror resulted in the waiver of a material solicitation requirement).

Next, UNICOR argues that even if the solicitation revision materially revised the past performance evaluation criteria, that revision would not effect other areas of the offerors' proposals. With regard to Power Connector, the agency contends that the protester was aware that the agency did not view the contracts it submitted as relevant or recent as a result of discussions, and thus its revised proposal, submitted in response to discussions, should have already accounted for this understanding in its revised past performance proposal. For this reason, the agency argues that the protester could not have been prejudiced by the lack of an opportunity to revise its price in response to RFP amendment No. 6. We are not persuaded by this argument.

The record shows that although the agency requested that the protester provide more recent contracts for provision of leather, the agency did not advise the protester that its contract for providing electronics to UNICOR would be discounted, entirely. See AR, Tab 5, Emails from Agency to Protester Regarding Discussions. Additionally, the record does not show that the agency provided the protester with an opportunity to revise its price in response to the agency's request for revised past performance information during discussions. Power Connector asserts that, had it known that its successful past and current performance on UNICOR contracts would not count toward its past performance rating, it would have lowered its price in order to enhance the competitiveness of its proposal. Protest at 14. The protester further states that it will lower its price in response to the amended solicitation if the restriction is removed. Id. On this record, we think the protester demonstrates that the revision to the evaluation criteria would have an effect on its proposed price.

Finally, UNICOR argues that it limited offerors' ability to submit revised prices in response to RFP amendment No. 6 in order to prevent harm to the competitive process. In this regard, the CO states that the debriefing provided to Power Connector after the award erroneously provided Power Connector with the prices of the other offerors. CO Statement at 2. The CO states that this disclosure was in error because "I provided more information tha[n] the FAR authorized me to release, including the prices submitted in response to the solicitation by all the offerors, not just the awardee's price." Id.

UNICOR argues that by limiting offerors' proposal revisions to past performance, the agency neutralized the competitive advantage that Power Connector gained from learning the other offerors' prices. We are not persuaded by this argument. As the protester notes, the FAR instructs that when an agency issues a new solicitation in response to a protest, the agency should provide to offerors in the competitive range from whom revised proposals are sought any "[i]nformation provided to unsuccessful offerors in any debriefings conducted on the original award regarding the successful offeror's proposal." FAR sect. 15.507(b)(2), (c)(1). In light of the FAR requirement to equalize the disclosure of information, we think that the agency's decision to limit the scope of revisions to address its concern regarding the information disclosed to Power Connector was unreasonable. Instead, consistent with FAR sect. 15.507, we think that the agency should remedy the concern regarding unequal disclosures of information by advising all offerors of the pricing information. See Norvar Health Servs.--Protest and Reconsideration, B-286253.2 et al., Dec. 8, 2000, 2000 CPD para. 204 at 5 (FAR sect. 15.507 requires agencies to provide information provided to unsuccesful offerors during debriefing to all competitive range offerors upon recompetition arising from corrective action).

CONCLUSION AND RECOMMENDATION

We find that the agency's amendment made a material change to the solicitation's evaluation criteria. UNICOR does not address whether the revision to the past performance factor would affect the ability to meet specifications evaluation factor. The protester states that, if given the opportunity, it would revise its proposed price to reflect changes in its past performance references; the protester does not, however, address any changes to the ability to meet specifications factor. As discussed above, the general rule is that offerors should be permitted to revise all aspects of their proposal, absent a reasonable basis proffered by the agency for limiting revisions. In light of the agency's lack of a reasonable basis to limit proposal revisions, and in light of the protester's clear statement that it would revise its price proposal, we think that offerors should be allowed to revise any aspect of their proposals in response to the revised solicitation.

We recommend that UNICOR amend the solicitation to permit offerors to revise all aspects of their proposals, including price. We also recommend that Power Connector be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d) (1) (2011).  (Power Connector, Inc., B-404916.2, August 15, 2011)  (pdf)
 

Sunrise argues that the agency should have accepted its late proposal submission in January 2007, which lowered the protester’s proposed price for both of its proposed wheelchair models. In particular, Sunrise contends that its modified price for the LXE model would have been lower than Invacare’s proposed wheelchair, and thus eliminates the VA’s rationale for award, i.e., that Invacare’s proposal was lower-priced and more highly rated technically than either of Sunrise’s proposals. As discussed above, the solicitation included the FAR clause, Instructions to Offerors--Commercial Items, which addresses the submission of late proposals as follows:

(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered . . .

(ii) However, a late modification of an otherwise successful offer, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.
FAR sect. 52.212-1(f).

The protester contends that because its late proposal submission lowered its price below that proposed by Invacare, Sunrise should be considered an “otherwise successful offeror” from whom the agency should have accepted a late proposal. We disagree.

Under negotiated procurements, the FAR provides generally that a proposal received after the time set for receipt shall not be considered. FAR sect. 15.208(b)(1). Our Office has long held that the late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors. Tishman Constr. Corp., B-292097, May 29, 2003, 2003 CPD para. 94 at 3. The FAR provides a limited exception for receipt of late proposals that are submitted by the “otherwise successful offeror” and which provide more favorable terms. This exception to the general “late is late” rule is intended to allow the government to receive the benefit of a more advantageous proposal from the offeror who has been selected for award, without offending the general rule that offerors must be treated equally. With regard to the protester’s arguments, an offeror cannot make itself the “otherwise successful offeror” by submitting a late proposal modification; instead the offeror must already be the offeror in line for award prior to the time the late proposal modification is submitted. Phyllis M. Chestang, B-298394.3, Nov. 20, 2006, 2006 CPD para. 176 at 5 n.3. In this regard, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an “otherwise successful offeror.” Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD para. 57 at 5-6. Here, the agency evaluated the timely-submitted proposals and selected Invacare, and not Sunrise, for award; therefore, the limited exception to the FAR’s general rule for timely submission and consideration of proposals does not apply. On this record, we conclude that the agency’s determination not to accept Sunrise’s late proposal modification was reasonable.  (Sunrise Medical HHG, Inc., B-310230, December 12, 2007) (pdf)


As noted above, along with its March 10 letter requesting FPRs, NSF issued amendment No. 6 to the RFP that postponed the period of performance by 4-1/2 months. Period of performance is a material solicitation requirement. Development Assocs., Inc., B-188416, Aug. 1, 1977, 77-2 CPD ¶ 64 at 3; see Logitek, Inc., B-238773, July 6, 1990, 90-2 CPD ¶ 16 at 4, recon. denied, B-238773.2, Nov. 19, 1990, 90-2 CPD ¶ 401 (delivery terms are a material requirement in a solicitation). Because IBS did not confirm its initial proposal or otherwise acknowledge amendment No. 6, IBS was not bound to a material requirement of the solicitation and its initial proposal thus was unacceptable. S.C. Myers & Assocs., Inc., B-286297, Dec. 20, 2000, 2001 CPD ¶ 16 at 4. (Integrated Business Solutions, Inc., B-292239, July 9, 2003)


Notwithstanding a provision in a request for proposals that price revisions could only be made during a reverse auction, the agency reasonably determined to request revised price proposals after the end of the auction, in response to an agency-level protest, where the solicitation was ambiguous concerning when the auction would end and the agency reasonably believed that offerors may have been misled.  Royal Hawaiian Movers, Inc., B-288653, October 31, 2001 (pdf)  (Reverse auction)


Where an offeror's final proposal submission contains terms or provisions that vary from statements or representations made during prior discussions, a procuring agency properly relies on the final proposal submission as the controlling statement regarding how the offeror intends to perform. See, e.g., Marylou's Transp. Serv., B-261695, Sept. 28, 1995, 95-2 CPD para. 154 at 3 (best and final offer supersedes prior proposal).  (WinStar Federal Services, B-284617; B-284617.2; B-284617.3, May 17, 2000)


Here, the request for a final proposal revision specified that discussions were concluded and reasonably provided notice that the agency was requesting final prices. The protester should have and appears to have understood this to be the case, and has no reasonable basis to complain that it was misled because it did not receive adequate notice.  (Spectrum Sciences & Software, Inc., B-282373, June 22, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Gunter Construction, Inc. B-412039: Nov 30, 2015  (pdf) Power Connector, Inc., B-404916.2, August 15, 2011  (pdf)
Research Analysis & Maintenance, Inc. B-410570.6, B-410570.7: Jul 22, 2015  (pdf)  
Hughes Network Systems, LLC, B-409666.3, B-409666.4: Aug 11, 2014  (pdf)  
URS Federal Services, Inc.; ManTech Telecommunications and Information Systems Corporation, B-408678.5, B-408678.6, B-408678.7: Jun 20, 2014.  (pdf)  
Inchcape Shipping Services Holding, Ltd., B-403399.3,B-403399.4, Feb 6, 2012  (pdf)  
Sunrise Medical HHG, Inc., B-310230, December 12, 2007 (pdf)  
Integrated Business Solutions, Inc., B-292239, July 9, 2003  
Royal Hawaiian Movers, Inc., B-288653, October 31, 2001 (pdf)  (Reverse auction)  
Pacific Island Movers, B-287643.2, July 19, 2001  (Reverse auction)  (pdf)  
WinStar Federal Services, B-284617; B-284617.2; B-284617.3, May 17, 2000  
Spectrum Sciences & Software, Inc., B-282373, June 22, 1999  

U. S. Court of Federal Claims - Key Excerpts

GAO’s recommendation in this case states correctly, we believe, the controlling legal principle: “[u]nless an agency restricts the scope of the revisions offerors may make to their proposals in responding to solicitation amendments issued by the agency as part of corrective action, offerors may revise any aspect of their proposals, including those that were not the subject of the amendment(s).” AR 4865 (citing Power Connector, Inc., B-404916.2, 2011 CPD ¶ 186 at 3-4 (Comp. Gen. Aug. 15, 2011)). This court accepted that rule in ManTech Telecommunications. & Information Systems Corp. v. United States, 49 Fed. Cl. 57, 75 n.29 (2001) (recognizing the general rule that offerors may “revise any aspect of their proposals they see fit, including portions that were not the subject of the amendment and discussions”), aff’d, 30 F. App’x 995 (Fed. Cir. 2002). The rationale is that, in negotiated procurements, an offeror should be able to update its proposal through the various rounds of negotiations and revisions which typically take long periods of time. Therefore, when an agency asks, as here, for new or newly formatted information with respect to a discrete part of a proposal, there is no reason to assume a limitation on revisions to other parts of the proposal unless one is explicitly stated.

The decision in Mantech Telecommunications explains that, were this not the rule,

and the government was instead required to preserve inviolate all rating advantages enjoyed by a protestor in the initial selection process, it would be the rare situation, indeed, where the government could exercise the authority conferred by the FAR to amend a solicitation or conduct further discussions, because in most processes a protestor could point to some ratings advantage on either a factor or a subfactor that might be lost if new or revised proposals were filed.

49 Fed. Cl. at 57.

That reasoning comports with the FAR’s instruction to offerors that they “may submit modifications to their proposals at any time before the solicitation closing date and time, and may submit modifications in response to an amendment, or to correct a mistake at any time before awards.” 48 C.F.R. § 52.215-1(c)(6) (2012); see also 48 C.F.R. § 52.212-1(f)(1) (“Offerors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.”). It is no great leap of logic to extend this rule to the context of agency corrective action prompted by a recommendation of GAO. When agency corrective action invites proposal revisions by offerors, the solicitation is reopened, and those offerors can submit modifications until the new closing date. Those modifications are not limited to the areas addressed by the corrective action unless explicitly stated. The only question remaining here, then, is whether the agency explicitly limited the proposal revisions to those things treated by Amendment 12.

Amendment 12 changed the agency’s pricing approach and instructed offerors to submit pricing information which included all of the testing items listed in Attachment 7 so that the agency could properly use those prices against its estimated usage rates to compute a new price. It was a part of the corrective action resulting from the first GAO protest. The amendment established a new date for final proposal revisions, AR 4017-18, and instructed offerors that, “[i]f any changes identified by this amendment cause a revision to other than the pricing of your proposal, please submit same in the number of copies and formats as your original submission.” AR 3971.

Plaintiff reads a limitation on proposal revisions to allow only those related to pricing. Although it is true that the language quoted above plainly refers to the possibility that pricing changes might trigger changes to the technical substance of a proposal, to agree with plaintiff we would have to go further and rule that the same language, despite the default rule discussed above, precluded changes to a proposal not triggered by Amendment 12. There is plainly no explicit limitation in the amendment, and we decline to insert one. At best, plaintiff should have perceived an ambiguity in the amendment, which would then trigger an obligation to enquire of the agency whether a limitation was intended. LabCorp’s technical revisions were therefore proper, and its bid could be accepted by the agency.

Plaintiff’s allegation that the agency engaged in unequal discussions are based on MEDCOM’s answers to discussion questions after it decided to take corrective action. Quest believes it was misled by the agency when it asked, “[i]n the event that a change is made to our Technical Volume, is a full resubmission of the bid . . . required or should we only resubmit the volumes of their [sic] proposal that required updates.” AR 4557. The CO discussed this inquiry with Quest over the telephone and answered by reiterating the language of Amendment 12, that offerors were to submit new volumes in the same format and number of copies as the original if changes to them were made. AR 4557. The CO thus obviously interpreted the inquiry as one going to procedure and not substance.

LabCorp, on the other hand, asked the agency whether offerors would “be able to resubmit portion[s] of the solicitation for further committee review and evaluation, particularly if the vendor’s capabilities have changed or been enhanced since its original response to the RFP? . . . If we do submit such information, please confirm [that] any sections submitted will be re-evaluated by the lab committee.” AR 3817.2. The CO answered this question by telephone and explained that MEDCOM “could not restrict [LabCorp] from submitting information other than pricing, and yes it would be looked at by the evacuation team.” AR 3822 (Memo for Record, Jan. 11, 2012).

In short, Quest and LabCorp received different answers because they asked different questions. LabCorp asked whether it could submit updates to its proposal to account for changes in its capabilities and the passage of time. Quest asked only whether it should submit a new proposal in whole or only the technical volume, if changes were made changes to it. The agency was under no duty to answer a question not asked of it, nor was it under a duty to restate the general rule that proposal revisions of any kind could be made up until the deadline for final offers. MEDCOM thus did not engage in unequal discussions or mislead Quest. (Quest Diagnostics, Inc., v. U. S. and Laboratory Corporation of America, No. 12-907, May 1, 2013)  (pdf)


In the case sub judice, plaintiff’s banner claim is that SelectTech’s proposal must be rejected because the FPR it submitted on August 24, 2005, included an SF33 that was marked “DRAFT,”giving rise to an ambiguity that, in plaintiff’s view, precluded the Air Force from accepting the FPR in awarding the contract. Plaintiff submits that SelectTech did not resolve this ambiguity (and supply a FPR capable of being accepted by the Air Force) until it submitted an SF33 without the word “DRAFT” on September 20, 2005 – that date, of course, was well after the time set for receipt of FPRs. Plaintiff argues that the Air Force’s acceptance of SelectTech’s earlier, allegedly nonconforming proposal violated its obligation to treat all offerors equally. See Banknote Corp. of America, Inc. v. United States, 56 Fed. Cl. at 383 (describing this obligation); Seattle Sec. Servs., 45 Fed. Cl. at 569 (same). In the court’s view, this claim misses the mark for several reasons. First, the record makes clear that there was no ambiguity in the August 24, 2005, FPR. SelectTech’s FPR included not one, but two signed Forms SF33, only one of which included the word “DRAFT.” The Air Force clearly was aware that it – and not SelectTech – had inserted the word “DRAFT” into the face of the SF33 as a watermark, with the intention of removing that word in the final version of the contract. Most importantly, any ambiguity that might otherwise have arisen here plainly was eliminated by the cover letter that SelectTech provided with its August 24, 2005, proposal, which plainly stated that the attached submission was its “Final Proposed Revision (FPR)” and which included a segment that explained how the SF33 submitted with that proposal was prepared. There is no indication whatsoever in the record that the Air Force found these circumstances confusing – indeed, there is every indication that the Air Force understood exactly what was happening. Accordingly, the only way for the court to conclude that an ambiguity existed here is if, like Old Dobbins (and apparently plaintiff), it dons blinders to the cover letter and other circumstances underlying the formation of the contract. But, the court refuses to indulge in such willful blindness, choosing instead to view the contracting documents sub judice in the context in which they arose. Compare Info. Sys. & Networks, Corp. v. United States, 68 Fed. Cl. 336, 342 (2005); W & F Bldg. Maint. Co. v. United States, 56 Fed. Cl. 62, 69 (2003) (“Before making a conclusive determination about an agreement’s ambiguity, or lack thereof, the court should consider the context in which the agreement was executed.”); The Orkand Corp., 86-2 C.P.D. ¶ 723 at *5-8 (1986); see also John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 156 (3d ed. 1995). And, in that context, there is indisputably no ambiguity here.  (NVT Technologies, Inc., v. U. S., 06-122C, Reissued October 18, 2006) (pdf)


GAO has squarely addressed the issue whether offerors, when submitting a final proposal pursuant to FAR § 15.307(b), may revise their proposals without limitation or are restricted to revising only those portions of the proposals that were the subject of agency discussions, holding that offerors responding to discussions may revise aspects of their proposals beyond the scope of the discussions absent an agency's decision, in appropriate circumstances, to limit the revisions offerors could make after the conduct of discussions. See Rel-Tek Sys. & Design, Inc., B-280,463.7, Jul. 1, 1999, 99-2 CPD ¶ 1.  Both the drafting history of FAR § 15.307(b) and its subsequent interpretation by GAO are consistent with what the court believes is the proper interpretation of the plain language of the regulation. In this case, the correspondence from the contracting officer inviting final proposal revisions did not limit the scope of changes to be made. The October 19, 2002 letter gave specific instructions for submitting "[a]ny changes to your pricing." A.R. at 538 (emphasis supplied). Moreover, the contracting officer informed the offers that although technical changes were not "envision[ed]," such changes were "not prohibited." Id. Because plaintiffs were afforded an opportunity to revise their proposals after the issuance of Amendment 12, the court finds no violation of law in the agency's issuance of Amendment 12.  (ABF Freight System, Inc, Old Dominion Freight Line, Inc., Overnite Transportation Co., Yellow Transportation, Inc., v. U. S., No. 02-1807C, February 26, 2003)  (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Quest Diagnostics, Inc., v. U. S. and Laboratory Corporation of America, No. 12-907, May 1, 2013  (pdf)  
NVT Technologies, Inc., v. U. S., 06-122C, Reissued October 18, 2006 (pdf)  
ABF Freight System, Inc, Old Dominion Freight Line, Inc., Overnite Transportation Co., Yellow Transportation, Inc., v. U. S., No. 02-1807C, February 26, 2003)  (pdf)  
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