|
The protester also contends that the Secret Service abused
its discretion by not seeking clarifications or conducting
discussions with FFA regarding its PII procedures. Protest
at 10-13.
As set forth above, the RFP incorporated FAR provision
52.212-1, which states that the agency intends to evaluate
offerors and make award without discussions, but reserves
the agency's right to conduct discussions if determined
necessary by the contractor. RFP at 14; FAR provision
52.212-1(g). Discussions 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. See FAR §
15.306(d); see also Environmental Quality Mgmt., Inc.,
B-402247.2, Mar. 9, 2010, 2010 CPD ¶ 75 at 5. In contrast,
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 § 15.306(a);
Satellite Servs., Inc., B-295866, B-295866.2, Apr. 20,
2005, 2005 CPD ¶ 84 at 2 n.2.
We agree with the Secret Service that it was not required
to seek clarifications or conduct discussions with FFA.
See MOL at 6-10. Contrary to the protester's assertion,
permitting FFA to address its notification process for a
breach of PII would constitute discussions, not
clarifications, because it would require FFA to revise its
proposal in some material respect. See FAR § 15.306(d);
see, e.g., Alltech Eng'g Corp., B-414002.2, Feb. 6, 2017,
2017 CPD ¶ 49 at 5-7 (finding that providing an offeror
the opportunity to revise its proposal and cure a
deficiency would constitute discussions). Moreover, an
agency's discretion to hold discussions is quite broad and
is not generally reviewed by this Office.[8] Alliance
Worldwide Distrib., LLC, B-408491, Sept. 12, 2013, 2013
CPD ¶ 223 at 3. There are no statutory or regulatory
criteria specifying when an agency should or should not
initiate discussions. L-3 Servs., Inc., B-406292, Apr. 2,
2012, 2012 CPD ¶ 170 at 14.
Thus, FFA's contention that the Secret Service was
obligated to conduct discussions or seek clarifications
regarding FFA's PII procedures, lacks merit. See Alares,
LLC, B-407124, Nov. 7, 2012, 2012 CPD ¶ 316 at 4-5
(denying challenge to agency's evaluation where the
protester's proposal failed to address compliance with
infection control procedures and provide a construction
safety plan, as required by the solicitation, and the
agency was not required to seek clarifications in this
respect). (First Financial
Associates, Inc. B-415713, B-415713.2: Feb 16, 2018)
In reviewing protests challenging the rejection of a
proposal based on the agency's evaluation, it is not our
role to reevaluate proposals; rather our Office examines
the record to determine whether the agency's judgment was
reasonable and in accordance with the solicitation
criteria and applicable procurement statutes and
regulations. Wolverine Servs. LLC, B-409906.3, B-409906.5,
Oct. 14, 2014, 2014 CPD ¶ 325 at 3; Orion Tech., Inc.,
B-405077, Aug. 12, 2011, 2011 CPD ¶ 159 at 4.
Based on our review of the contemporaneous record here, we
agree that the Air Force evaluated Geotech's technical
proposal reasonably and consistent with the terms of the
solicitation. As set forth above, the RFP stated that to
be found acceptable under the well stratigraphy technical
subfactor, offerors were to provide evidence of their
prior performance of at least 2 domestic water projects
where a licensed geologist logged the well stratigraphy
during the well drilling operation. RFP at 47.
Significantly, the protester concedes that, "[w]hile
Geotech's response to the EN may not have expressly
confirmed that a licensed geologist logged the
stratigraphy for the project completed at Last Chance
Basin, in identifying the previous contracts, it was
presumed that a licensed geologist logged the well
stratigraphy during the well drilling." Comments at 2. It
is an offeror's responsibility to submit a well-written
proposal, with adequately detailed information which
clearly demonstrates compliance with the solicitation
requirements and allows a meaningful review by the
procuring agency. See International Med. Corps, B-403688,
Dec. 6, 2010, 2010 CPD ¶ 292 at 8. An offeror is
responsible for affirmatively demonstrating the merits of
its proposal and, as here, risks the rejection of its
proposal if it fails to do so. HDL Research Lab, Inc.,
B-294959, Dec. 21, 2004, 2005 CPD ¶ 8 at 5. As quoted
above, and as Geotech essentially concedes, its response
to the evaluation notice did not clearly state that a
licensed geologist logged the stratigraphy for the Last
Chance Basin project. Moreover, Geotech identifies no
aspect of its technical proposal that otherwise states
that a licensed geologist logged the stratigraphy for that
project. See generally Protest; Comments.
To the extent that Geotech maintains that "it was presumed
that a licensed geologist logged the well stratigraphy"
for the Last Chance Basin project, the Air Force was not
required to infer such information from Geotech's
technical proposal or its response to the evaluation
notice. See, e.g., Optimization Consulting, Inc.,
B-407377, B-407377.2, Dec. 28, 2012, 2013 CPD ¶ 16 at 9
n.17. Agencies are not required to infer information from
an inadequately detailed proposal, or to supply
information that the protester elected not to provide. See
LexisNexis, Inc., B-299381, Apr. 17, 2007, 2007 CPD ¶ 73
at 6-7 n.6 (noting that an agency is under no obligation
to parse a protester's proposal to try to determine
whether the proposal offers comparable sources of
information).
We also disagree with the protester's assertion that "the
contracting officer could have and should have sought
further clarification" if Geotech's response to the
evaluation notice was not sufficiently clear. Comments at
2. As discussed above, the record shows that the agency,
during discussions, specifically identified its concerns
regarding well stratigraphy at the Last Chance Basin
project. Contrary to the protester's mistaken belief, the
Air Force was not required to seek further clarifications
from Geotech, or afford it yet another opportunity to cure
the deficiency in its proposal or its subsequent response
to the evaluation notice. See, e.g., Nomura Enter., Inc.,
B-251889.2, May 6, 1993, 93-1 CPD ¶ 490 at 5-6 (finding
that where an agency has advised the offeror of
deficiencies and given the offeror an opportunity to
revise its proposal, the agency has no obligation to
conduct further discussions or provide the offeror a
second opportunity to revise its proposal); Alltech Eng'g
Corp., B-414002.2, Feb. 6, 2017, 2017 CPD ¶ 49 at 6
("Although agencies have broad discretion as to whether to
seek clarifications from offerors, offerors have no
automatic right to clarifications regarding proposals . .
. .").
Because we find that the Air Force reasonably found
Geotech's proposal technically unacceptable under the well
stratigraphy evaluation subfactor, we need not address the
protester's evaluation challenge under the waterline
installation subfactor, since the RFP provided that
proposals must be evaluated as acceptable under each
technical subfactor in order to be acceptable overall. See
RFP at 46. That is, even if we were to find that its
proposal was improperly evaluated under the waterline
installation subfactor, Geotech could not show that it was
competitively prejudiced by any such evaluation errors,
because its proposal would remain technically unacceptable
under the well stratigraphy subfactor and would thus not
be eligible for award under the terms of the solicitation.
Competitive prejudice is an essential element of a viable
protest; where the protester fails to demonstrate that,
but for the agency's actions, it would have had a
substantial chance of receiving the award, there is no
basis for finding prejudice, and our Office will not
sustain the protest, even if deficiencies in the
procurement are found. See, e.g., Special Servs.,
B-402613.2, B-402613.3, July 21, 2010, 2010 CPD ¶ 169 at
4.
In sum, we find no basis to question the Air Force's
evaluation of Geotech's technical proposal and the
protester's allegations to the contrary only reflect its
disagreement with the agency's evaluations, which, without
more, provides no basis to question the reasonableness of
the agency's judgments. See Citywide Managing Servs. of
Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15,
2000, 2001 CPD ¶ 6 at 10-11. (Geotech
Environmental Services, Inc. B-415035: Nov 8, 2017)
Valkyrie contends that the agency's decision not to seek
clarifications concerning the SAM's resume was
unreasonable and contrary to law, regulation, and the
terms of the solicitation. Protest at 7. Specifically,
Valkyrie argues that several factors both intrinsic and
extrinsic to its proposal should have alerted the
evaluators to Valkyrie's clerical error, and that the
agency therefore erred in not seeking such clarifications.
Protester's Comments on the Agency Report at 5. Based on
our review of the record, we find no basis on which to
sustain the protest.
Valkyrie argues that the agency abused its discretion by
not seeking clarifications in this case because the
factual context made the need for clarifications clear.
Comments at 5. For example, Valkyrie notes that other
parts of its proposal were inconsistent with the resume in
question, which should have alerted the agency to the need
for clarifications. Id. Specifically, Valkyrie argues that
its staffing plan noted that the SAM had 31 years of
related professional experience, which was inconsistent
with the 11 years of acquisition management experience
displayed on the truncated resume. Protest at 4.
Additionally, Valkyrie argues that its SAM currently works
in an acquisition management capacity on the incumbent
contract, has done so since November of 2004, and thus is
well-known to the agency. Comments at 5, n.6. Furthermore,
Valkyrie argues that its certification (made as part of
submitting its proposal) that all key personnel identified
in its proposal met the required qualifications should
also have alerted the agency to the necessity of
clarifications. Comments at 5. Finally, Valkyrie contends
that when viewed in the context of these circumstances,
the agency's refusal to seek clarification was
unreasonable. Id.
As a general matter, it is an offeror's responsibility to
submit a well-written proposal, with adequately detailed
information which clearly demonstrates compliance with the
solicitation requirements and allows a meaningful review
by the procuring agency. See International Med. Corps,
B-403688, Dec. 6, 2010, 2010 CPD ¶ 292 at 8. An offeror is
responsible for affirmatively demonstrating the merits of
its proposal and, as here, risks the rejection of its
proposal if it fails to do so. HDL Research Lab, Inc.,
B-294959, Dec. 21, 2004, 2005 CPD ¶ 8 at 5. In reviewing
protests challenging the rejection of a proposal based on
the agency's evaluation, it is not our role to reevaluate
proposals; rather, our Office examines the record to
determine whether the agency's judgment was reasonable and
in accordance with the solicitation criteria and
applicable procurement statutes and regulations. Wolverine
Servs. LLC, B-409906.3, B-409906.5, Oct. 14, 2014, 2014
CPD ¶ 325 at 3; Orion Tech., Inc., B-405077, Aug. 12,
2011, 2011 CPD ¶ 159 at 4.
Additionally, the Federal Acquisition Regulation (FAR)
describes a spectrum of exchanges that may take place
between a contracting agency and an offeror during
negotiated procurements. See FAR § 15.306. Clarifications
are limited exchanges between the agency and offerors that
may occur when contract award without discussions is
contemplated. FAR § 15.306(a). As a baseline matter, our
cases have generally concluded that agencies may, but are
not required to, engage in clarifications that give
offerors an opportunity to clarify certain aspects of
proposals or to resolve minor or clerical errors. See e.g.
Satellite Servs., Inc., B-295866, B-295866.2, Apr. 20,
2005, 2005 CPD ¶ 84 at 2 n.2.
With respect to Valkyrie's argument that its proposal was
inconsistent on its face, Valkyrie maintains that it
should have been obvious to the agency, based on
Valkyrie's staffing plan, either that its SAM had the
relevant experience, or that there was an error in the
proposal. Protest at 4. However, the agency notes, and we
agree, that the two portions of the proposal were not
necessarily inconsistent. Agency Report at 8-9. The
solicitation called for 12 years of acquisition management
experience, but the staffing plan merely notes 31 years of
"related professional experience." Id. The two categories
are not equivalent, and, in our view, it is reasonable to
conclude that the category of related professional
experience includes work experience other than acquisition
management experience. This reading is reinforced by
protester's concession that only 19 of the SAM's 31 years
of related professional experience were actually in
acquisition management. Comments at 3.
The fact that the SAM had 19 years of acquisition
management experience was in no way discernible from
Valkyrie's proposal as submitted. Agencies are not
required to infer information from an inadequately
detailed proposal, or to supply information that the
protester elected not to provide. See LexisNexis, Inc.,
B-299381, Apr. 17, 2007, 2007 CPD ¶ 73 at 6-7 n.6 (an
agency is under no obligation to parse a protester's
proposal to try to determine whether the proposal offers
comparable sources of information). Therefore, we see no
basis to conclude that information contained in the
protester's proposal should have alerted the agency to an
error with the SAM resume.
Valkyrie's argument that the agency impermissibly ignored
information allegedly in its possession concerning their
SAM's relevant experience is similarly groundless.
Valkyrie is correct that our Office has recognized that in
certain limited circumstances, an agency evaluating a
proposal has an obligation to consider certain information
that is "too close at hand" to ignore. See, e.g.,
International Bus. Sys., Inc., B-275554, Mar. 3, 1997,
97-1 CPD ¶ 114 at 5. This doctrine, however, is not
intended to remedy an offeror's failure to include
information in its proposal. Great Lakes Towing Co. dba
Great Lakes Shipyard, B-408210, June 26, 2013, 2013 CPD ¶
151 at 8; FN Mfg. LLC, B-407936 et al., Apr. 19, 2013,
2013 CPD ¶ 105 at 3. Additionally, our decisions on this
point have been limited to consideration of past
performance information known to the agency; we have
generally declined to extend the doctrine to include
information related to the qualifications of key personnel
because they relate to technical acceptability rather than
past performance. See, e.g. Consummate Computer
Consultants Sys., B-410566.2, June 8, 2015, 2015 CPD ¶ 176
at 6 n.6; Enterprise Solutions Realized, Inc.; Unissant,
Inc., B-409642, B-409642.2, June 23, 2014, 2014 CPD ¶ 201
at 9.
An offeror that fails to submit an adequately written
proposal runs the risk of having its proposal rejected as
unacceptable. Healthstar VA, PLLC, June 22, 2007, 2007 CPD
¶ 114 at 2. The agency, therefore, was not obliged to
consider any knowledge it may or may not have had
concerning the SAM's experience in this case.
The protester further contends that the agency should have
been alerted to the error in Valkyrie's proposal because
Valkyrie certified that all personnel met the requirements
of the solicitation as part of the submission process for
the proposal. Comments at 5. However, we note, again, that
the agency is not obliged to parse the protester's
proposal to try to determine whether the proposal offers
comparable sources of information. See, e.g., Alares, LLC,
B-407124, Nov. 7, 2012, 2012 CPD ¶ 316 at 4-5 (protest of
agency's evaluation of protester's proposal is denied
where the proposal failed to address compliance with
infection control procedures and provide a construction
safety plan, as required by the solicitation, and agency
was not required to seek clarification or infer or piece
together such information from the protester's proposal).
If a routine certification of compliance coupled with a
non-compliant proposal were sufficient to compel an agency
to seek clarifications, clarifications would, in effect,
be universally required.
Finally, protester contends that, while any of these
elements individually may not have made the agency's
refusal to seek clarifications unreasonable, the
circumstances, when taken together, should have compelled
the agency to seek clarifications. Agencies have broad
discretion as to whether to seek clarifications from
offerors, and offerors have no automatic right to
clarifications regarding proposals. Alltech Engineering
Corp., B-414002.2, Feb. 6, 2017, 2017 CPD ¶ 49 at 6. We
see no basis in the protester's arguments, singly or in
combination, to conclude that the agency acted
unreasonably by failing to seek clarifications in this
case. (Valkyrie
Enterprises, LLC B-414516: Jun 30, 2017)
Alltech concedes that its proposal omitted “information”
required by the RFP, but the protester argues that this
was “an obvious minor clerical error” for which the Corps
“had an obligation” to seek clarification. Protest at 4.
Alltech maintains that it should have been obvious to the
Corps that the omission was inadvertent, because the
proposal otherwise included a critical path method (CPM)
schedule with detailed information regarding the duration
and schedule for each project phase. Id. at 5; Comments at
2. Moreover, the protester insists that the Corps knew
that Alltech had a safety plan, because, according to
Alltech, it has performed at least 32 projects for the
Tulsa District and each project had a safety plan.
Comments at 3. In any event, Alltech claims that the
missing information was not necessary to evaluate whether
the proposal was realistic and logical, or whether Alltech
understood the project, therefore the omission was not
material.[4] See id. at 2. Alltech contends that the Corps
abused its discretion by rejecting the proposal without
seeking clarification and permitting Alltech to submit the
missing information. See Protest at 4‑5.
The Corps acknowledges that Alltech provided a detailed
CPM schedule, but the agency maintains that without a
narrative explanation of the proposed plans, the SSEB had
insufficient information to meaningfully review whether
Alltech’s proposed contract duration and schedule were
realistic and logical. See COS at 13‑14. The Corps argues
that a narrative explanation of a phasing plan, crew
assembly and work schedule, and safety plan, was a
material solicitation requirement that could not be
addressed through clarifications, but would have required
the agency to conduct discussions and Alltech to submit a
revised proposal. See Mem. of Law (MOL) at 3. The Corps
maintains that Alltech had a duty, but failed, to submit a
proposal with sufficient detail and documentation to
demonstrate its understanding of the project, thus it was
reasonable and consistent with the solicitation for the
agency to reject Alltech’s proposal. Id. We agree.
It is an offeror’s responsibility to submit a well‑written
proposal, with adequately detailed information which
clearly demonstrates compliance with the solicitation
requirements and allows a meaningful review by the
procuring agency. See International Med. Corps, B‑403688,
Dec. 6, 2010, 2010 CPD ¶ 292 at 8. An offeror is
responsible for affirmatively demonstrating the merits of
its proposal and, as here, risks the rejection of its
proposal if it fails to do so. HDL Research Lab, Inc.,
B‑294959, Dec. 21, 2004, 2005 CPD ¶ 8 at 5. In reviewing
protests challenging the rejection of a proposal based on
the agency’s evaluation, it is not our role to reevaluate
proposals; rather our Office examines the record to
determine whether the agency’s judgment was reasonable and
in accordance with the solicitation criteria and
applicable procurement statutes and regulations. Wolverine
Servs. LLC, B‑409906.3, B‑409906.5, Oct. 14, 2014, 2014
CPD ¶ 325 at 3; Orion Tech., Inc., B‑405077, Aug. 12,
2011, 2011 CPD ¶ 159 at 4.
As a preliminary matter, we note that Alltech’s pleadings
and protest submissions, like its proposal, omit any
discussion of the RFP’s requirement that offerors submit a
written narrative explaining the offeror’s proposed
contract duration and summary schedule. See generally
Protest; Comments; attachs. Rather, Alltech focuses
exclusively on its omission of a phasing plan, crew
assembly and work schedule, and safety plan (which the
protester variously describes as “missing documents,”
“supporting components,” or “supporting material”). See
Protest at 4‑5; Comments at 1‑4. Thus, Alltech, in our
view, understates the RFP’s submission requirements under
the duration and schedule evaluation factor, and
understates the extent of the omission from its technical
proposal.
The solicitation, as discussed above, explicitly required
offerors to provide a narrative explanation that included
a proposed phasing plan, crew assembly and work schedule(s),
and safety plan. RFP, amend. 1, at 11‑12 (emphasis added).
The RFP stated that the agency would evaluate the
narrative to determine whether the offeror’s proposed
phasing plan, work crew assembly and work schedule, and
safety plan were realistic and logical. See id. at 12
(emphasis added). Offerors were advised that the intent of
these submissions was to provide enough detail to
demonstrate the offeror’s understanding of the project.
Id. The RFP also included a number of admonitions in that
regard. For example, offerors were “encouraged to present
their best technical proposal” and “cautioned to put forth
their best efforts, and to furnish all information clearly
to allow the Government to evaluate proposals[,]” because
the agency did not intend to enter into discussions. Id.
at 8, 16. Moreover, offerors were explicitly warned that
material omissions may cause a technical proposal to be
rejected as unacceptable; that proposals which are
generic, vague, or lacking in detail may be considered
unacceptable; that failure to include required information
may result in the proposal being found deficient if
inadequate detail is provided; and that the government
could not make award based on a deficient offer. Id. at
16.
Contrary to Alltech’s view, its omission of a narrative
explanation (describing the proposed phasing plan, crew
assembly and work schedule, and safety plan) from its
technical proposal was not a minor clerical error, but a
material omission. Clearly stated RFP technical
requirements are considered material to the needs of the
government, and a proposal that fails to conform to such
material terms is technically 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 ¶ 140 at 4-5; Outdoor Venture Corp., B‑288894.2,
Dec. 19, 2001, 2002 CPD ¶ 13 at 2-3. Here, while Alltech
disagrees with the Corps, it has not persuasively refuted
the Corps’ assertion that without a narrative explanation
describing Altech’s proposed plans, the agency had
insufficient information to meaningfully review whether
Alltech’s proposed contract duration and schedule were
realistic and logical. Indeed, as noted above, Alltech
simply fails to address the RFP’s requirement for a
written narrative explanation.
To the extent that Alltech maintains that it should have
been obvious to the Corps (based on Alltech’s submission
of a CPM schedule) that Alltech had developed a phasing
plan and crew assembly and work schedule, the Corps was
not required to infer such information from Alltech’s
technical proposal. See, e.g., Optimization Consulting,
Inc., B‑407377, B‑407377.2, Dec. 28, 2012, 2013 CPD ¶ 16
at 9 n.17. Agencies are not required to infer information
from an inadequately detailed proposal, or to supply
information that the protester elected not to provide. See
LexisNexis, Inc., B‑299381, Apr. 17, 2007, 2007 CPD ¶ 73
at 6‑7 n.6 (an agency is under no obligation to parse a
protester’s proposal to try to determine whether the
proposal offers comparable sources of information).
Moreover, we agree with the Corps that the omission could
not have been addressed through clarifications. The
Federal Acquisition Regulation (FAR) describes a spectrum
of exchanges that may take place between a contracting
agency and an offeror during negotiated procurements. See
FAR § 15.306. 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 §
15.306(a); Satellite Servs., Inc., B-295866, B‑295866.2,
Apr. 20, 2005, 2005 CPD ¶ 84 at 2 n.2. Section
15.306(b)(2) of the FAR specifically provides that
communications under this section “shall not be used to
cure proposal deficiencies or material omissions,
materially alter the technical or cost elements of the
proposal, and/or otherwise revise the proposal.” See also
FAR § 15.306(b)(3) (“communications shall not provide an
opportunity for the offeror to revise its proposal”).
Here, to become acceptable, Alltech’s offer would have
required submission of a revised technical proposal to
provide the missing narrative explanation of the proposed
plans required by the solicitation. Providing an offeror
the opportunity to revise its proposal and cure a
deficiency would constitute discussions, not
clarifications, because that would require the submission
of information necessary to make the proposal acceptable.
FAR § 15.306(d). Further, agencies are not required to
conduct discussions when, as here, the solicitation
advises of the agency’s intent to award a contract or task
order on the basis of initial proposals. Id. Thus,
although the protester views its omission to be minor or
clerical, correction of the omission would have required
the agency to conduct discussions.
In any event, even if we were to assume that Alltech’s
omission was a minor clerical error that could have
corrected through clarifications, an agency is permitted,
but not required, to obtain clarifications from offerors.
Although agencies have broad discretion as to whether to
seek clarifications from offerors, offerors have no
automatic right to clarifications regarding proposals, and
such communications 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. A. G. Cullen Constr., Inc.,
B‑284049.2, Feb. 22, 2000, 2000 CPD ¶ 45 at 5-6.
Therefore, Alltech’s contention that the Corps was
obligated to seek clarifications regarding its omission
and permit the protester to submit the missing narrative,
lacks merit. See, e.g., Alares, LLC, B-407124, Nov. 7,
2012, 2012 CPD ¶ 316 at 4‑5 (Protest of agency’s
evaluation of protester’s proposal is denied where the
proposal failed to address compliance with infection
control procedures and provide a construction safety plan,
as required by the solicitation, and agency was not
required to seek clarification or infer or piece together
such information from the protester’s proposal.).
In sum, we find no basis to question the agency’s
evaluation of Alltech’s technical proposal and the
protester’s allegations to the contrary only reflect its
disagreement with the agency’s evaluations, which provides
no basis to question the reasonableness of the agency’s
judgments. See Citywide Managing Servs. of Port
Washington, Inc., B‑281287.12, B‑281287.13, Nov. 15, 2000,
2001 CPD ¶ 6 at 10‑11; see, e.g., Mike Kesler Enters.,
B‑401633, Oct. 23, 2009, 2009 CPD ¶ 205 at 3‑4 (agency
reasonably determined that protester’s proposal did not
provide sufficient detail and was technically unacceptable
where proposal lacked clear and consistent language and
information necessary to determine if the proposal would
function as proposed). (Alltech
Engineering Corp. B-414002.2: Feb 6, 2017)
We also find no merit to SMS’s argument that the Air Force
should have sought clarifications from the firm regarding
its security clearance levels. SMS maintains that
clarifications were appropriate because the firm “merely .
. . had to edit a few affected tables,” which, according
to SMS, would have been “particularly quick and easy.” SMS
Supp. Protest at 22.
In a negotiated procurement conducted pursuant to FAR part
15 (which is not directly applicable here), clarifications
are “limited exchanges” agencies may use to allow offerors
to clarify certain aspects of their proposals or resolve
minor or clerical mistakes. FAR § 15.306(a)(2); Envtl.
Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 CPD ¶
75 at 6. Although agencies have broad discretion as to
whether to seek clarifications from offerors, even under
FAR part 15, offerors have no automatic right to
clarifications regarding proposals, and such
communications 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. STG, Inc., B‑411415,
B-411415.2, July 22, 2015, 2015 CPD ¶ 240 at 8-9.
Here, we agree with the Air Force that the inconsistencies
in SMS’s final proposal were not minor clerical errors
that could simply be remedied through clarifications.
Instead, the record supports the agency’s position that
SMS’s errors “demonstrated a consistent failure to
understand the requirements or the ability to properly
propose in a manner that clearly demonstrated otherwise.”
SMS COS at 18. In this regard, the agency explains that
the evaluators were perplexed that the staffing tables
included in SMS’s final proposal were inconsistent with
what the protester submitted in response to the evaluation
notices; in fact, the contracting officer initially
thought that SMS erred in transposing the information from
the evaluation notice response. SMS COS at 19. Therefore,
he instructed the evaluation team to investigate the
history of the tables SMS submitted that outlined the
firm’s security clearance distributions to determine
whether there was a clerical error. Id.
Specifically, the evaluators first confirmed that SMS had
submitted separate and distinct versions of its staffing
matrix in its initial proposal, evaluation notice
response, and final proposal. With respect to the final
proposal, the evaluators examined whether SMS actually
meant TS/SCI in the instances where the firm referenced
top secret clearances (i.e., was using top secret and
TS/SCI synonymously). The evaluators concluded that this
was not the case because SMS had identified personnel with
both levels of clearance--TS/SCI for the NMCC tasks and
top secret for the AFNCR enterprise tasks. Id. at 20; see
SMS AR, Tab 33, SMS Technical Proposal - Final, at 52-55.
The evaluation team also compared SMS’s final staffing
matrix against related labor categories in the firm’s
labor summary (exhibit D) to further determine whether
there was a clerical error in transposing information. SMS
COS at 20. The evaluators observed that the security
clearance column in the staffing matrix and the related
cells in the labor summary both contained the same
references to top secret clearances in the respective
labor categories (rather than the anticipated TS/SCI
clearances). Id. Given this, the Air Force reasonably
ruled out that any clerical error resulted in the agency’s
concerns with SMS’s security clearance distribution. Thus,
because offerors have no automatic right to
clarifications, and because SMS’s final proposal contained
more than a minor clerical error and would have required
substantial rework to revise the inconsistencies (i.e.,
discussions), we find unavailing the protester’s
contention that the agency erred by not seeking
clarifications. See Manthos Eng’g, LLC, B‑401751, Oct. 16,
2009, 2009 CPD ¶ 216 at 2 (failure to submit option year
pricing not a mistake that could be addressed through
clarifications).
In sum, we find unobjectionable the Air Force’s evaluation
of the protesters’ proposals under the enterprise IT
support factor. The protesters’ complaints reflect their
disagreement with the agency’s assessments, but do not
demonstrate an unreasonable evaluation. (Abacus
Technology Corporation; SMS Data Products Group, Inc.
B-413421, B-413421.3, B-413421.5, B-413421.6: Oct 28,
2016)
The solicitation included the following contract line item
numbers (CLINs): CLIN No. 0001, one-time transition-in
costs to be incurred in the base year; CLIN No. 0002,
labor costs and fixed fees for mission and support; CLIN
No. 0003, labor costs and fixed fees for oversized and
outsized support; and CLIN No. 0004, a plug number of
$13,201,051 supplied by the agency for other direct costs
(ODC). AR, Tab 4e, RFP Attach. 5, Cost/Price Matrix. The
RFP required offerors to complete various solicitation
attachments, including, as relevant here, attachment 5,
the Cost/Price Matrix, and attachment 10, the Teaming
Matrix.
(sections deleted)
Our Office will review an agency’s
evaluation and exclusion of proposals from the competitive
range for reasonableness and consistency with the
solicitation criteria and applicable statutes and
regulations. Cylab Inc., B-402716, July 13, 2010, 2010 CPD
¶ 163 at 4. Contracting agencies are not required to
retain in the competitive range proposals that are not
among the most highly-rated or that the agency otherwise
reasonably concludes have no realistic prospect of being
selected for award. FAR § 15.306(c)(1); General Atomics
Aeronautical Sys., Inc., B-311004, B‑311004.2, Mar. 28,
2008, 2008 CPD ¶ 105 at 5. It is the agency’s role to
define both its underlying needs and the best method of
accommodating those needs, and it is within the agency’s
discretion to reject as unacceptable proposals that do not
meet the solicitation’s requirements and to determine
which of the proposals are reasonably within the
competitive range. See Companion Data Servs. LLC,
B‑410022, B-410022.2, Oct. 9, 2014, 2014 CPD ¶ 300 at 8. A
protester’s disagreement with an agency’s evaluation and
competitive range judgment does not establish that the
agency acted unreasonably. CEdge Software Consultants,
LLC, B-409380, Apr. 1, 2014, 2014 CPD ¶ 107 at 6.
As discussed above, the solicitation stated that the
“total estimated dollar value provided on Attachment 0010
shall be equal to the Total Proposed Price found on
Attachment 0005.” RFP Amend. 4, § L.5.1.8. The record
shows that SRI’s attachment 5 indicated a “Total Proposed
Price” of $128,384,472, while attachment 10 indicated a
“Total Estimated dollar value” of $115,183,421.72. SRI
Proposal, Attach. 5, Cost/Price Matrix; SRI Proposal,
Attach. 10, Teaming Matrix. The difference between these
two figures is equal to the ODC plug number set forth in
the RFP.
Although SRI contends that the two figures would have
matched if the agency had added the ODC plug number to the
“Total Estimated dollar value” in the protester’s
attachment 10, an agency is not required to adapt its
evaluation to comply with an offeror’s submissions--the
question is not what an agency could possibly do to cure a
noncompliant submission, but, rather, what it is required
to do. American Sys. Corp., B‑409632, June 23, 2014, 2014
CPD ¶ 188 at 4 (rejecting protester’s argument that
omission was a “minor formal defect” and finding that
agency reasonably found proposal unacceptable where
proposal required agency to perform calculations in order
to determine whether proposal was compliant); Herman
Constr. Group, Inc., B-408018.2, B-408018.3, May 31, 2013,
2013 CPD ¶ 139 at 3. Moreover, where, as here, proposal
submission requirements are clear, an agency is not
required to assume the risks of potential disruption to
its procurement to permit an offeror to cure a defect in
its proposal submission caused by the offeror’s failure to
comply with a mandatory solicitation requirement. American
Systems Corp., supra. Therefore, we find the agency
reasonably found SRI’s proposal to be noncompliant and
ineligible for award. (Strategic
Resources, Inc. B-411024.2: Apr 29, 2015) (pdf)
Similarly, we have no basis to question the agency’s
finding that Dellew failed to staff the [ammunition supply
point] ASP supervisor key position for the Joint Base
Langley-Eustis installation. The record shows that Dellew
provided the labor category “JBLE-Story [Joint Base
Langley-Eustis] ASP Supervisor,” on its Attachment 0002,
but the protester did not propose any FTEs for that labor
category. Id. exh. 12b, Dellew’s Attachment 0002, at 3-4.
While the agency reports that during a review of the
protester’s organizational diagram, the evaluators noted
that Dellew had allocated 1.0 FTE for the ASP supervisor
position, see COSF/MOL at 21, this was insufficient to
cure the above failure since the RFP specifically advised
that the agency would evaluate offerors’ staffing
approaches based on the information furnished in
Attachment 0002. Because the protester did not include any
FTEs for the ASP supervisor position in its Attachment
0002, the evaluators reasonably assigned a deficiency
under the staffing and management plan subfactor. In this
regard, it is the offeror’s responsibility to submit an
adequately written proposal for the agency to evaluate,
SC&A, Inc., B-270160.2, Apr. 10, 1996, 96-1 CPD ¶ 197 at
5, and agencies are not required to adapt their
evaluations to comply with an offeror’s submission, or
otherwise go in search of information that an offeror has
omitted or adequately failed to present. LS3 Inc.,
B-401948.11, July 21, 2010, 2010 CPD ¶ 168 at 3 n.1;
Hi-Tec Sys., Inc., B-402590, B-402590.2, June 7, 2010,
2010 CPD ¶ 156 at 3.
In contesting the evaluators’ rating, Dellew states that
its failure to enter an FTE for its proposed ASP
supervisor on Attachment 0002 was an obvious clerical
error. Dellew argues that the agency should have resolved
any questions regarding the omission of an FTE for the ASP
supervisor position on Attachment 0002 by seeking
clarifications from Dellew.
Federal Acquisition Regulation (FAR) § 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 §
15.306(a); Satellite Servs., Inc., B-295866, B-295866.2,
Apr. 20, 2005, 2005 CPD ¶ 84 at 2 n.2. Although agencies
have broad discretion as to whether to seek clarifications
from offerors, offerors have no automatic right to
clarifications regarding proposals, and such
communications 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. Hawk Institute for Space
Sciences, B-409624, June 20, 2014, 2014 CPD ¶ 200 at 4.
We find no merit to Dellew’s contention that the agency
was required to seek clarifications from the protester
with respect to the above deficiency. As noted above, an
agency is permitted, but not required, to obtain
clarifications from offerors. In any event, to render its
proposal acceptable, the protester would have to cure the
above deficiency by amending its Attachment 0002, which
would have constituted discussions. (Dellew
Corporation B-410251.3: May 13, 2015) (pdf)
Regarding Cubic’s argument that the agency should have allowed it to clarify an
error in its proposal pertaining to its data rights information, the record
reflects that Cubic’s FPR included multiple representations that it was
proposing government purpose rights for its [deleted] software. The record also
reflects, however, that Cubic included the [deleted] software on a list of items
for which the government was only to receive limited commercial license rights.
Based on the discrepancy, the evaluators questioned what rights the government
would receive in the [deleted] software. The ambiguity in this regard was of
concern to the agency because of the potential impact of restrictive rights in
the [deleted] software on future competitions for EST II-related procurements
since the [deleted] software was a key component of the protester’s system. AR,
Tab 32c, Cubic Evaluation Worksheet, at 8‑14.
Cubic maintains that including the contradictory rights information was an
inadvertent error, resulting from its failure to update a table included in its
initial proposal submission, where it had indicated that the government would
have limited rights in the [deleted] software. Nevertheless, given the number of
instances in its final proposal, allegedly 15, where Cubic established that the
government would have government purpose rights in the [deleted] software, Cubic
argues that the agency should have understood the single reference to more
limited commercial rights to have been an error and simply addressed the matter
through clarifications, rather than assign its proposal a significant
weakness.[6]
The agency, however, was not required to permit Cubic to revise its final
proposal submission. It is well-settled that an offeror has the obligation to
submit a well-written proposal free of ambiguity regarding its merits or
compliance with solicitation requirements and that an offeror fails to do so at
its own risk. See Innovative Commc’ns Techs., Inc., B-291728, B‑291728.2, Mar.
5, 2003, 2003 CPD ¶ 58 at 5‑7. In a FAR Part 15 procurement, an agency may, but
is not required to, engage in clarifications and give offerors an opportunity to
clarify certain aspects of their proposals or to resolve minor or clerical
errors; the agency has broad discretion to decide whether to engage in
clarifications with an offeror. See LINTECH, LLC, B‑409089, B-409089.2, Jan. 22,
2014, 2014 CPD ¶ 38 at 8. Moreover, clarifications 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. A.G. Cullen
Constr., Inc., B‑284049.2, Feb. 22, 2000, 2000 CPD ¶ 45 at 5-6; FAR § 15.306(a).
The record reflects that the ambiguity created by Cubic’s admitted error relates
to a material aspect of its technical approach regarding open architecture. As
noted above, the RFP specifically required offerors to describe the rights
asserted for their technical data and software.[7] Moreover, the evaluation
record further shows, consistent with the terms of the solicitation, that the
protester’s failure to unequivocally assert the rights granted to the government
in the [deleted] software, a key component of the protester’s offered system,
caused the agency to question the extent to which Cubic’s system could be
enhanced through future competitive acquisitions were the government to only
have limited rights in this key component of Cubic’s system.[8] Given the
circumstances, and the broad discretion afforded contracting officers in
conducting clarifications, we cannot find that the contracting officer acted
improperly by not requesting that Cubic clarify the ambiguity in its proposal
concerning the government’s data rights in the [deleted] software. (Cubic
Simulation Systems, Inc., B-410006, B-410006.2: Oct 8, 2014) (pdf)
Eagle Creek asserts that it
misinterpreted the SFO as requiring boat dockage, and that the agency "had
actual or constructive knowledge" that Eagle Creek's offer included costs for
this feature. Eagle Creek argues that the agency was therefore required to
advise the company during negotiations that the SFO did not require offerors to
include costs for boat dockage. Protester's Comments at 7.
In support of this contention, Eagle Creek states that in November 2010 it met
with representatives of GSA and the DHS at the protester's facility. The
protester claims that "[a]t the meeting, DHS representatives expressed general
approval of the building in which DHS' offices would be located, and expressed
specific approval of, desirability and need for use of dock facilities that
would be available to DHS." Protest at 3. The protester explains that based upon
these statements, and section 1.4 of the SFO, which provides that "[t]he right
to use appurtenant areas and facilities is included" in the offered lease, SFO
at 5, it interpreted the SFO to "mean that dock usage was a requirement of the [s]olicitation
and that the price proposal should include said required usage." Protester's
Comments at 4; see Protest at 7.
The protester also points to a letter it sent to the agency after negotiations
closed as confirmation of its belief during the procurement that dock usage was
a requirement of the SFO. This letter "outline[s] some of the advantages the
Eagle Creek site has to offer over other sites," including the "[d]ocks at Eagle
Creek," "24 designated transient slips," "launch ramp, hydraulic trailer [and]
heated 40' x 80' service department building," all of which would be "available
to Homeland Security." AR, Tab 9, Eagle Creek Letter to GSA, Mar. 31, 2011, at
1-2.
We first note that, although the initial version of the SFO posted on October
10, 2010, stated that GSA was seeking "to lease office space . . . and two boat
slips," the SFO, as amended and posted on January 11, 2011, and under which this
lease was awarded, did not. Compare SFO 9NY2355 (Feb. 16, 2010) with SFO 9NY2355
(Jan. 7, 2011). That is, there was no mention in the SFO under which this lease
was awarded of any requirement that boat slips or boat dockage be provided as
part of the lease. Given the clarity of the solicitation, the protester's
asserted reliance on the views expressed by the DHS representatives in November
2010, as somehow adding a requirement for boat dockage or boat slips to the SFO,
issued in January 2011, was misplaced. We have repeatedly held that oral advice
that would have the effect of altering the written terms of a solicitation, even
from the contracting officer, does not operate to amend a solicitation or
otherwise legally bind the agency. Noble Supply and Logistics, B‑404731, Mar. 4,
2011, 2011 CPD para. 67 at 3; TRS Research, B‑274845, Jan. 7, 1997, 97-1 CPD
para. 6 at 3. This would be especially the case, where the alleged oral advice
was given 2 months prior to the solicitation being reissued as amended.
Nor do we agree with the protester that section 1.4 of the SFO, which provides
that "[t]he right to use appurtenant areas and facilities is included" in the
offered lease, SFO at 5, required that the protester make its facility's boat
slips and dockage available for use by the agency. The SFO does not include a
definition of "appurtenant," and none has been cited to by the parties. As such,
we must accord that term its plain meaning. That is, "[t]he term "appurtenant in
a lease is defined to include 'everything which is necessary and essential to
the beneficial use and enjoyment of the thing leased or granted.'" See
Hammond-Warner v. United States, 797 F.Supp. 207, 210 (E.D.N.Y. 1992), citing
Ruggiero v. Long Island Railroad, 161 A.D.2d 622, 555 N.Y.S.2d 401, 402 (2d
Dep't 1990)). This definition and understanding of "appurtenant" is consistent
with the agency's explanation that the SFO's "Access and Appurtenant Areas"
provision, as evidenced by the solicitation, is a standard clause included in
all GSA SFOs "that affords the Government the right to use building lobbies,
common hallways, plazas and other appurtenant areas and facilities." Contracting
Officer's Statement at 4.
To construe this clause, as the protester asserts it did, that is, to
essentially include in its offer of office space the entirety of its facility
and all of its facility's amenities at no cost to the government is simply
unreasonable. To illustrate, under the protester's asserted interpretation of
section 1.4 of the SFO, the protester would have had to make available to the
Government as part of its lease of certain office space on the third floor and
all of the second floor of its "Eagle Creek Facilities Bldg.," all of Eagle
Creek's boat dockage and 24 slips, as well as it launching ramp, hydraulic
trailer, and service department building, as "appurtenant areas" at no
additional cost.
We also note that Eagle Creek's March 31 letter expressly recognized that Eagle
Creek may be competing against offers providing inland facilities. In this
regard, Eagle Creek's March 31 letter recognized "that GSA is responsible for
selecting the lowest priced facility," with Eagle Creek then comparing its
facility to a facility located inland, and positing that "this is not an easy
apples to apples comparison, it is more like an apples to oranges situation."
The letter closes by stating that Eagle Creek "hope[s] that this outline of
amenities available at Eagle Creek will make your decision easier in selecting a
location that represents the best value for Homeland Security." AR, Tab 9, Eagle
Creek Letter to GSA, Mar. 31, 2011, at 2. Thus, Eagle Creek recognized that its
offer may be competing in what is essentially a price competition, against
offers for inland facilities (which, as recognized by Eagle Creek and by their
very nature, cannot provide boat slips or dockage). Consequently, its asserted
interpretation of the solicitation as requiring that facilities located on the
water include in their lease price the costs for boat dockage and slips, while
those offering facilities located inland or off the water would not have to
include such costs, is patently unreasonable.
We also find the protester's position that the agency knew or should have known
that Eagle Creek had allegedly included the costs for boat dockage and slips in
its offer to be without merit. As for actual knowledge, the agency states that
it was unaware during the course of this acquisition that Eagle Creek's offer
included such costs. Contracting Officer's Statement at 5. There was nothing in
Eagle Creek's offer indicating or otherwise providing for boat dockage, and the
protester does not assert that it advised agency representatives during the
competition that boat dockage was included in Eagle Creek's offer.
Further, we agree with the agency that Eagle Creek's letter of March 31, 2011,
did little or nothing to clarify specifically what was included in Eagle Creek's
offer. That is, while the letter references, among other things, the "[d]ocks at
Eagle Creek," "24 designated transient slips," and the "launch ramp, hydraulic
trailer [and] heated 40' x 80' service department building," which would be
"available to Homeland Security," it also states that "Eagle Creek is offering
up to 600 [square feet] of free secured storage." (emphasis added). AR, Tab 9,
Eagle Creek Letter to GSA, Mar. 31, 2011, at 1‑2. As pointed out by the agency,
this letter does not state whether the boat dockage, slips, trailer, and
building were going to be "made available" for a fee or at no cost (i.e.,
"free") to the agency.
Moreover, the record shows that negotiations with Eagle Creek closed on March
28. See AR, Tab 7, Agency Letter (Mar. 25, 2011). As such, Eagle Creek's March
31 letter, which the protester points to in support of its position that the
agency knew or should have known that Eagle Creek had erroneously included the
costs of boat dockage its offer, was submitted after the close of discussions.
It is well established that an agency need not reopen discussions to resolve
deficiencies first introduced by the offeror after discussions have closed.
Ogden Support Servs., B‑270354.2, Oct. 29, 1996, 97‑1 CPD para. 135 at 7; IPEC
Advanced Systems, B‑232145, Oct. 20, 1988, 88‑2 CPD para. 380 at 4.
In sum, Eagle Creek's alleged misinterpretation of the SFO to require that its
offer include costs associated with boat dockage and slips was a reasonable
interpretation of the solicitation. In addition, the protester's assertion that
the agency knew or should have known that Eagle Creek's offer erroneously
included such costs, and should have raised that issue during discussions, is
without merit. (Eagle Creek Marina,
B-405220, September 16, 2011) (pdf)
Finally, CMS asserts in a
supplemental protest that the agency’s award to LAX was improper because the
awardee (“LAX Hospitality LP, Radisson Inn”) was not the entity that submitted
the proposal upon which the award was based (“LAX Hospitality, LLC, DBA Radisson
Hotel at Los Angeles Airport”). In fact, CMS notes that the latter entity
identified as submitting the proposal was not registered with Central Contractor
Registration (CCR). It is true that a contract cannot be awarded to any entity
other than the one which submitted the proposal. However, the name of an offeror
need not be exactly the same in all of the offer documents; although, the offer
documents or other information available must show that differently-identified
offering entities are in fact the same legal entity. Al Hamra Kuwait Co., supra,
at 3. The fact that an offeror has only one taxpayer identification number (TIN)
or data universal numbering system (DUNS) number and only one address is often a
reliable indicator of the offering entity. S3 LTD, B- 288195 et al., Sept. 10,
2001, 2001 CPD para. 164 at 11-12. The agency asserts that the difference in
entity names was a mere clerical error. This discrepancy was discovered when the
contracting officer’s search of the DUNS number listed on the awardee’s
proposal, which indicated that the entity name identified for that DUNS number
was LAX Hospitality LP, Radisson Inn. Upon discovering the discrepancy, the
contracting officer contacted LAX, who confirmed that LAX Hospitality, LP was
the name of the entity, not LAX Hospitality, LLC. Supp. AR at 6. The contracting
officer also noted that the address listed in the proposal and in the DUNS
systems was that of LAX Hospitality, LP, which was registered with the CCR. Id.
Therefore, we find that, notwithstanding the variations in the identification of
the awardee between the proposal and award, the agency reasonably determined
that LAX Hospitality, LP was the proper entity and was eligible to receive
award. (Command Management Services, Inc.,
B-310261; B-310261.2, December 14, 2007) (pdf)
Battelle argues that the agency improperly rejected its initial proposal based
on Battelle’s omission of the option year pricing. Battelle contends that the
agency should have suspected that Battelle had made a “mistake or clerical
error” in its proposal and had a “duty to verify” Battelle’s proposal and
conduct “clarifications” to allow Battelle to correct the omission. Protest at
3-4, 6-8. In support of its argument, Battelle cites FAR sect. 15.306(a)(2),
which permits clarifications to “resolve minor or clerical errors,” and FAR
sect. 15.306(b)(3)(i), which permits communications before the establishment of
the competitive range to address proposal ambiguities such as “errors,
omissions, or mistakes.” An offeror bears the burden of submitting and
adequately written proposal that contains all of the information required under
a solicitation, Sam Facility Mgmt, Inc., B-292237, July 22, 2003, 2003 CPD para.
147 at 5, and an agency may reject a proposal that omits required pricing. Joint
Venture Penauillie Italia S.p.A; Cofathec S.p.A; SEB.CO S.a.s; CO.PEL.S.a.s.,
B‑298865, B-298865.2, Jan. 3, 2007, 2007 CPD para. 7 at 6. Although, in an
appropriate case, an agency may allow an offeror to correct a mistake or
clerical error in a cost or price proposal through clarifications (as opposed to
discussions), when it does so, both the existence of the mistake or error and
the amount intended by the offeror must be apparent from the face of the
proposal. Id. at 8. Here, although the existence of Battelle’s error was clear
from the face of its proposal, it was not obvious what pricing Battelle intended
to propose for the missing option years. Although, as Battelle points out, the
initial proposal referred to “inflation adjustment[s]” in the narrative portion
of the proposal, these vague references do not explain Battelle’s intended
pricing for the option years. That is, Battelle’s option year pricing, as
reflected in the 24 pages of pricing spreadsheets and additional narrative that
Battelle provided to the agency in its agency protest, could not be gleaned from
Battelle’s references to inflation adjustments in the initial proposal
submission, and did not constitute “minor or clerical errors” as contemplated by
the FAR. Thus, we find that the omission of Battelle’s option year pricing could
not be corrected through clarification or verification. See University of Dayton
Research Inst., B‑296946.6, June 15, 2006 , 2006 CPD para. 102 at 8. Regarding
Battelle’s argument that “errors, omissions, or mistakes” can be corrected by
communications before the establishment of the competitive range, FAR sect.
15.306(b)(2) specifically provides that communications under this section “shall
not be used to cure proposal deficiencies or material omissions, materially
alter the technical or cost elements of the proposal, and/or otherwise revise
the proposal.” See also FAR sect. 15.306(b)(3) (“communications shall not
provide an opportunity for the offeror to revise its proposal”). Again, we agree
with the agency that Battelle’s omission of the option year pricing is material,
given the RFP’s requirements to provide detailed option year pricing for
evaluation, and any attempt to cure this omission would necessitate submission
of a revised proposal and would constitute discussions. See Joint Venture
Penauillie, supra, at 8. Finally, Battelle contends that the agency’s decision
to eliminate its proposal from further competition was inconsistent with the
RFP. According to Battelle, since the RFP provides that the competitive range
will be established based only on the evaluation of technical proposals, see RFP
at 73, the elimination of Battelle’s proposal based on a cost issue was
premature and its pricing omissions should have been addressed after
establishment of the competitive range and through discussions. However, unless
the agency decides to establish a competitive range, the RFP provision
referenced by Battelle does not apply, and it does not require the agency to
conduct discussions. As noted, the agency has not yet decided to establish a
competitive range and to conduct discussions. Rather, the agency rejected
Battelle’s proposal (along with two others), after inspecting proposals for
completeness, for not containing all of the information required by the RFP, a
decision which, as discussed above, was reasonable. Consistent with the RFP, if
the agency makes award based on initial proposals, then Battelle’s proposal
cannot be considered for award. If, on the other hand, the agency decides to
conduct discussions, we expect that the agency then will have to decide whether
or not to include Battelle’s proposal in the competitive range. See FAR sect.
15.306(c)(1). (Battelle Memorial Institute,
B-299533, May 14, 2007) (pdf)
Where, as here, a mistake in an offer other than the awardee's offer is first alleged after award, the general rule is that the unsuccessful offeror must bear the consequences of its mistake unless the contracting officer was on actual or constructive notice of an error before award. PAE GmbH Planning and
Constr., B-233823, Mar. 31, 1989, 89-1 CPD ¶ 336 at 3. Omega asserts that the magnitude of the difference in the two
offerors' discount fees should have provided constructive notice of the mistake, and that the contracting officer should have sought clarification from Omega. In this connection, the agency report acknowledges that
"[a]fter comparison, the evaluators did note the apparent spread of the proposed discount fees." Contracting Officer's Statement at 4. However, Omega's alleged improper pricing of its proposal does not present the type of mistake which could be corrected through clarifications, nor was the agency required to conduct discussions in order to correct the mistake.
(Omega
World Travel, Inc., B-283218, October 22, 1999) |
