Clarifications/Discussions and Awardee's Past Performance

SOC also complains that the agency was required to engage in clarifications or discussions with respect to the deficiencies in SOC's proposal regarding the PSC license and key personnel experience issues. We disagree.

As noted above, this task order procurement was conducted as a competition between [Department of State's Worldwide Protective Services II] WPS II contract holders and was subject to the provisions of Federal Acquisition Regulation (FAR) subpart 16.5, which does not establish specific requirements for conducting clarifications or discussions. Technatomy Corp., B-411583, Sept. 4, 2015, 2015 CPD ¶ 282 at 7. The solicitation here stated that the agency intends to evaluate proposals and award "without discussions with Offerors, (except clarifications as described in FAR 15.306(a), if required)." TORFP § M, at 5. Where, as here, however, an agency conducts a task order competition as a negotiated procurement, our analysis regarding fairness, will, in large part, reflect the standards applicable to negotiated procurements. Technatomy Corp., supra.

Section 15.306 of the FAR describes a range of exchanges that may take place when an agency decides to conduct exchanges with offerors during negotiated procurements and states that clarifications are limited exchanges between an agency and an offeror that may occur where contract award without discussions is contemplated. FAR § 15.306(a). An agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Id. However, clarifications may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or revise the proposal. Superior Gunite, B-402392.2, Mar. 29, 2010, 2010 CPD ¶ 83 at 4.

Here, any exchanges between the agency and SOC regarding the license and key personnel would have concerned the acceptability of SOC's proposal and would have required that SOC revise its proposal in some manner to cure the proposal deficiencies or material omissions. Accordingly, SOC could not have corrected its proposal through clarifications.

SOC further asserts that the agency was required to hold discussions with SOC because its price was so much lower than the awardee's. An agency need not conduct discussions with a technically unacceptable offeror. Electronic Systems USA Inc., B-246110, Feb. 14, 1992, 92-1 CPD ¶ 190. Further, the solicitation, expressly advised that the agency contemplated making award without discussions. TORFP § M at 5. An agency's decision not to initiate discussions is a matter we generally will not review. Tribalco, LLC, B-414120, B-414120.2, Feb. 21, 2017, 2017 CPD ¶ 73 at 6.  (SOC LLC B-415460.2, B-415460.3: Jan 8, 2018)

DBSI complains that the agency acted unreasonably by not seeking clarifications from the firm with regard to its legally binding teaming agreement. In support of this, DBSI points to its proposal, which states "Please see the following pages for a fully executed true and authentic copy of our legally binding agreement with [DELETED]." Agency Report (AR), Tab 5, DBSI Proposal, Vol. I-19. Rather than include the proper agreement, however, DBSI states that its proposal mistakenly included the confidentiality agreement. According to DBSI, the agency should have known that DBSI erroneously included the wrong agreement, and should have permitted the firm to clarify its proposal by allowing the firm to substitute the proper agreement with the mistaken agreement.

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. Alltech Engineering Corp., B-414002.2, Feb. 6, 2017, 2017 CPD ¶ 49 at 6.

We find no merit to DBSI's contention that the Navy was required to seek clarifications from the protester with respect to DBSI's legally binding teaming agreement. As noted above, an agency is permitted, but not required, to obtain clarifications from offerors. Furthermore, the RFP permitted, but did not require, the agency to "waive informalities and minor irregularities." RFP at 15. Moreover, to become acceptable, the protester would have to provide additional, substantive proposal information--specifically, the legally binding teaming agreement. Although the protester views its proposal omission to be minor or clerical, correction of this discrepancy would have required the agency to conduct discussions. Highmark Medicare Servs., Inc., et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 11(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.  (Defense Base Services, Inc. B-414591: Jul 12, 2017)

Awardee’s Low Price

In its initial protest, Pontiac argued that the awardee’s price was so low that it was either fictitious or evinced a plan to deceive the Forest Service through a bait-and-switch scheme. Protest at 12-13. Pontiac based its argument on a recalculation of the awardee’s price on a per-acre basis, which it compared to the per-acre price that the awardee had charged under the incumbent contract. Id. at 12. By Pontiac’s calculations, the awardee’s price is almost half the price it charged under the awardee’s incumbent contract. Id. Pontiac reasons that the awardee does not intend to perform in the manner required by the RFP (resulting in an alleged bait-and-switch), or else it intends to demand price increases from the Forest Service during performance. Id. at 13.

In our view, these allegations do not state a valid ground of protest. In the context of a fixed-price contract, a bidder or offeror, in its business judgment, may properly decide to submit a price that is extremely low--even below the cost of performance. Brewer-Taylor Assocs., B-277845, Oct. 30, 1997, 97-2 CPD ¶ 124 at 4. As a result, we dismiss this basis of protest.

Communication Regarding Pricing Schedules

During Pontiac’s debriefing, the CO acknowledged that the evaluation of the awardee’s pricing identified the potential that the firm had made a mistake,[7] and that the agency communicated with the firm to obtain clarification of whether its pricing was correct. Pontiac contends that the communication constituted discussions, and that such discussions were improperly unequal because Pontiac was not provided discussions or an opportunity to revise its proposal. Protest at 9. The agency contends that the communication was permissible because it was limited to clarifying that the agency had properly interpreted the awardee’s alternate price schedule as being applicable if both items were awarded to the firm, and clarifying whether the awardee’s pricing was mistaken. AR at 5-8. Furthermore, the agency argues, the awardee’s brief response, which stated that both the prices in its proposal and the agency’s interpretation of the alternate pricing schedule were correct, further confirms that the agency did not conduct discussions. Id. at 7-8.

The FAR describes a spectrum of exchanges that may take place between a contracting agency and an offeror in a negotiated procurement. See FAR § 15.306. In that regard, clarifications involve a limited exchange with an offeror that gives an opportunity to clarify certain aspects of a proposal or resolve minor or clerical errors. FAR § 15.306(a). Such communications “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.” FAR § 15.306(b)(2)-(3). Discussions occur when an agency seeks information essential to determine the acceptability of a proposal, or provides the vendor with an opportunity to revise or modify its proposal in some material respect. In contrast, where an agency simply seeks confirmation of its understanding of the proposal, it is merely obtaining a clarification. PricewaterhouseCoopers Public Sector, LLP, B-413316.2, B-413316.3, Dec. 27, 2016, 2017 CPD ¶ 12 at 13-14; see FAR § 15.306(d).

The record does not support the protester’s arguments that the meaning of the awardee’s pricing schedules required revision to be sufficiently clear, or that the agency’s communications otherwise permitted the firm to revise its proposal. Rather, the record reflects that before communicating with the awardee, the agency concluded that the awardee’s pricing schedules permitted the award of either item to the firm under the prices listed on one set of schedules, or the award of both items combined under the other set of schedules. When the agency communicated with the awardee, the contracting officer simply asked for confirmation of that understanding, and for price verification, which the awardee then provided in simple terms. Since the awardee was not permitted to revise its proposal, the record does not support Pontiac’s claim that the agency improperly held discussions only with the awardee.   (Pontiac Flying LLC B-414433, B-414433.2, B-414433.3: Jun 12, 2017)

On August 1, the Department of Justice filed a motion with the court requesting an advisory opinion from our Office. The court granted the motion and requested that our Office issue an advisory opinion regarding the merits of the protest Paltech filed with our Office. See id. Our opinion here is issued in response to the court’s request, and is presented in the same general format as we normally employ to issue decisions responding to bid protests. As explained below, our Office finds the protest without merit, and we would deny this protest.

(Sections deleted)

Paltech also asserts that the agency unreasonably refused to allow Paltech to submit additional documentation when the agency requested Paltech to clarify whether there was information in its proposal demonstrating performance within five years of the solicitation’s December 3 closing date. The agency states that the solicitation did not allow additional submissions or revisions relating to anything that could affect an offeror’s score.

It is well-settled that “[a]n 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.” Wolverine Services LLC, B-409906.3, B-409906.5, Oct. 14, 2014, 2014 CPD ¶ 325 at 6; see also, Savvee Consulting, Inc., B-408623, B-408623.2, Nov. 8, 2013, 2013 CPD ¶ 265 at 6. Clarifications cannot be used to cure deficiencies or material omissions in a proposal or otherwise revise a proposal. Savvee Consulting, Inc., supra. 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. Id.

The solicitation stated that the agency could allow an offeror to respond to clarifying questions but that offerors could not resubmit or revise documents. RFP at 159. Therefore, the agency provided Paltech the opportunity to clarify whether the proposal contained verifiable contractual documents demonstrating the required performance period for the IT Shows subcontract. Specifically, the agency requested that Paltech provide the location of the needed information in the verifiable contractual document that was submitted in its initial proposal submission and stated that Paltech could not provide additional documents or explanation. AR, Exh. 6, Agency Clarification Request, at 1. In response, Paltech referenced its subcontract agreement with IT Shows. AR, Exh. 6, Response to Clarification, at 1.

Here, additional documentation was required to demonstrate that Paltech met the five-year performance period requirement for the IT Shows subcontract and for Paltech’s proposal to become acceptable. This information could only be submitted in the course of discussions. See Savvee Consulting, Inc., supra. Since the agency did not hold discussions, it properly did not permit Paltech to provide additional documentation. In this regard, clarifications cannot be used to cure deficiencies or material omissions in a proposal, or to otherwise revise a proposal. Id.

On the record presented to our Office, and in response to the court’s request for an advisory opinion, we would deny this protest. (Planning & Learning Technologies, Inc.-- Advisory Opinion, B-413156.23: Oct 14, 2016).

CJW Desbuild contends that its failure to submit a signed copy of its joint venture agreement was “a minor oversight” and that it was “unreasonable” for the agency to downgrade its proposal on this basis. Protest at 4. The protester maintains that it is an “established limited liability company with its own DUNS number” and that it is currently “working with NAVFAC on another multiple award contract,” indicating that “NAVFAC is aware that CJW Desbuild is an established joint venture.” Id. The protester also asserts that it “submitted a proposed price that was over $300,000 lower than the lowest-priced awardee.” Id. CJW Desbuild further argues that NAVFAC should have used clarifications to permit it to correct its failure to provide a signed joint venture agreement. Id.

We find the protester’s arguments unpersuasive. As indicated above, the RFP specifically required a “signed copy of the joint venture agreement” and warned that failure to submit that agreement would be considered unacceptable. RFP at 13. Since the requirement for a signed JV agreement was specifically linked to technical acceptability, it could not be considered an informality or minor irregularity, subject to waiver. Further, regarding the protester’s argument that the agency was aware of its status as an established joint venture based on information outside its proposal, the agency was under no obligation to consider information not submitted as part of the protester’s proposal to establish the protester’s status as a joint venture. See ABSG Consulting, Inc., B-413155.14, Oct. 12, 2016, 2016 CPD ¶ 287 at 4-5.

We also conclude that CJW Desbuild’s failure to provide a signed joint venture agreement here could not have been remedied 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. Clarifications cannot be used to cure deficiencies or material omissions in a proposal or otherwise revise a proposal. DataSource, Inc., B-412468, Feb. 16, 2016, 2016 CPD ¶ 59 at 4. Since the protester’s failure to submit a signed JV agreement was a deficiency that rendered its proposal technically unacceptable, and clarifications do not envision revisions to proposals to cure matters of technical unacceptability, the protester could not have revised its proposal to make it acceptable via clarifications. See Hi-Tec Sys, Inc., B-402590, B-402590.2, June 7, 2010, 2010 CPD ¶ 156 at 4. Also, as noted above, an agency is permitted, but not required, to engage in clarifications; thus, even if CJW Desbuild’s failure to submit a signed JV agreement had been a minor clerical error, the agency would not have been required to give it the opportunity to correct it via clarifications.[2]

The protester further argues that FAR § 15.306 provides that an agency may communicate with offerors regarding “[a]mbiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)).” According to the protester, this means that the provisions of FAR § 14.407 pertaining to mistakes are effectively incorporated into FAR § 15.306. In this connection, FAR § 14.407-1 provides as follows:

After the opening of bids, contracting officers shall examine all bids for mistakes. In cases of apparent mistakes and in cases where the contracting officer has reason to believe that a mistake may have been made, the contracting officer shall request from the bidder a verification of the bid, calling attention to the suspected mistake. If the bidder alleges a mistake, the matter shall be processed in accordance with this section 14.407. Such actions shall be taken before award.

The protester’s argument is unavailing. The subsection of FAR § 15.306 cited by the protester--i.e., (b)(3)(i)--pertains to communications with offerors for purposes of determining whether a proposal should be included in the competitive range. Here, the agency did not intend to establish, nor did it establish, a competitive range. Thus, the provisions of FAR § 15.306(b)(3)(i) are inapplicable.

The protest is denied.  (CJW Desbuild JV, LLC B-414219: Mar 17, 2017)
 

SAIC argues that the agency abused its discretion by making the award without conducting discussions. Protest at 7-11; Comments at 2-12; Supp. Comments at 2‑4. Had the agency conducted discussions, SAIC contends, the firm could have corrected the deficiencies assessed to its proposal and addressed other adverse evaluation findings. Protest at 11-15. SAIC recognizes that our Office generally does not review an agency’s decision to make award without conducting discussions. Id. at 7 (citing Kiewit Louisiana Co., B-403736, Oct. 14, 2010, 2010 CPD ¶ 243 at 3). SAIC argues that we nevertheless should consider its allegation because our practice in this area rests in part on findings in prior decisions that there are “no statutory or regulatory criteria specifying when an agency should or should not initiate discussions.” Id. (quoting Trace Sys., Inc., B‑404811.4, B‑404811.7, June 2, 2011, 2011 CPD ¶ 116 at 5; ITT Sys. Corp., B‑405865, B‑405865.2, Jan. 6, 2011, 2012 CPD ¶ 44 at 3 n.3; Kiewit Louisiana Co., supra). SAIC points out that after these decisions were issued, the Department of Defense (DoD) promulgated Defense Federal Acquisition Regulation Supplement (DFARS) § 215.306(c), which states that “[f]or acquisitions with an estimated value of $100 million or more, contracting officers should conduct discussions.”[5] Protest at 8.

Based on this regulation, and the fact that this is a DoD procurement valued over $100 million, SAIC argues that our Office should review the agency’s decision not to conduct discussions here. SAIC further argues that due to the complexity and high dollar value of this procurement, the agency’s decision not to conduct discussions was improper. Protest at 10; Comments at 4. Finally, SAIC argues that the policy underlying DFARS § 215.306(c) dictates that discussions should have been conducted in this procurement.[6] Protest at 8-9; Comments at 6, 9-10.

We agree with SAIC that DFARS § 215.306(c) provides a basis for our Office to review the agency’s actions here.[7] We begin our review by observing that the operative word in the regulation is “should” and that FAR § 2.101 defines the word “should” to mean “an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance.” Thus, DFARS § 215.306(c) is reasonably read to mean that discussions are the expected course of action in DoD procurements valued over $100 million, but that agencies retain the discretion not to conduct discussions if the particular circumstances of the procurement dictate that making an award without discussions is appropriate. From this, we see the inquiry here to be whether the record shows, given the particular circumstances of this procurement, that there was a reasonable basis for the agency’s decision not to conduct discussions.

In response to SAIC’s protest, the agency points out that the solicitation cautioned offerors to submit their best price and technical terms in their initial proposals because the agency intended to make the award without discussions, if possible. See Mem. of Law at 4. The agency argues that this admonition, together with the disparity in the evaluated technical merit of the proposals, and the fact that Battelle’s pricing was found to be reasonable, shows the agency reasonably exercised its discretion under DFARS § 215.306(c) to forgo discussions. See id. at 9-10. Under the circumstances here, we agree with the agency.[8]

As discussed above, the solicitation provided for the evaluation of proposals under the “qualifying criteria” and three areas--technical/management, past performance, and price. RFP at 181. The technical/management area was weighted as significantly more important than the other two areas, and technical/management area factor 1, vehicle configuration, was weighted as significantly more important than the other area 1 factor. Id. As also discussed above, the solicitation advised that the assessment of a deficiency under any of the areas or factors “may cause” a proposal to be excluded from consideration for award. Id.

After the evaluation, SAIC’s proposal was assigned a rating of unacceptable under the qualifying criteria, a rating of marginal under the technical/management area, and a rating of unacceptable under the vehicle configuration factor. AR, Tab 8, SSEB Rep., at 25. Further, SAIC’s proposal was assessed three deficiencies and five significant weaknesses under the technical/management area. Id. at 29. In contrast, Battelle’s proposal was assigned a rating of acceptable under the qualifying criteria, a rating of good under the technical/management area, and a rating of good under the vehicle configuration factor. Id. at 25. Further, no deficiencies or significant weaknesses were assessed to Battelle’s proposal. AR, Tab 17, SSEB Rep., App. E, at 2. Upon reviewing the evaluation findings, the SSAC concluded that conducting discussions was not warranted based on Battelle’s superior technical/management proposal, its substantial confidence past performance rating, and its reasonable price. See AR, Tab 10, SSAC Comparative Analysis, at 13-15. The SSA adopted this recommendation.

We previously have found an agency’s decision not to conduct discussions to be reasonable where the record showed there were deficiencies in the protester’s proposal, the awardee’s proposal was evaluated as being technically superior to the other proposals, and the awardee’s price was reasonable. See Richard M. Milburn High Sch., B-277018, Aug. 19, 1997, 97-2 CPD ¶ 53 at 6; Int’l Data Prods., Corp. et al., B-274654 et al., Dec. 26, 1996, 97-1 CPD ¶ 34 at 10-11; Stabro Labs., Inc., B-256921, Aug. 8, 1994, 94-2 CPD ¶ 66 at 2, 5. Although those cases pre-date DFARS § 215.306(c), we find the principle applicable here. SAIC’s proposal was assessed a number of deficiencies under the most heavily-weighted components of the evaluation, and any one of these deficiencies provided a basis to eliminate the firm from the competition under the terms of the solicitation. Battelle’s proposal, on the other hand, was evaluated as technically superior under the most heavily weighted components of the evaluation, and it was seen as offering “significant benefits to the Government at low risk to both performance and schedule,” and at a reasonable price. AR, Tab 11, SSDD, at 4-5. On this record, we view as reasonable the agency’s decision to exercise the discretion it is afforded under DFARS § 215.306(d) to forgo discussions.  (Science Applications International Corporation B-413501, B-413501.2: Nov 9, 2016)

Sevatec also argues that the agency conducted discussions with SeKon without furnishing Sevatec a similar opportunity to address evaluated deficiencies in its proposal. In this regard, in its technical proposal SeKon included a diagram which listed, by name and employment category (e.g., systems engineer, subject matter expert for cybersecurity), proposed key personnel, members of its management team, subject matter experts, support staff, and a reach back team. SeKon Proposal Figure 25. The chart did not specifically identify whether the personnel were employees of SeKon or its subcontractor, Deloitte. In its cost proposal, SeKon listed, as required, proposed off-site and on-site rates for different labor categories for both SeKon and Deloitte.

In conducting the cost realism evaluation, the cost analyst considered whether the employees were SeKon or Deloitte employees. Supp. AR at 15-16. To confirm her conclusions in this regard, she requested the contracting officer to ask SeKon to indicate whether the employees worked for the prime or subcontractor, the employee’s skill category, and the applicable on-site and off-site rates. Id. at 17. The agency specifically advised SeKon that this was not an opportunity to revise, change or modify its proposal. Agency Email from Agency to SeKon, Sept. 18, 2014. SeKon responded with the requested information. SeKon Response to email, Sept. 18, 2014.

Sevatec asserts that SeKon’s initial proposal did not indicate how the management team would be divided between SeKon and Deloitte. According to Sevatec, this amounted to a material deficiency which the agency allowed SeKon to correct through discussions. Sevatec asserts that since the agency held discussions with SeKon, it was obligated to hold discussions with Sevatek and allow it to correct the deficiencies in its proposal.

Federal Acquisition Regulation § 15.306 describes a range of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are limited exchanges between an agency and an offeror for the purpose of clarifying certain aspects of a proposal, and do not give the offeror the opportunity to revise or modify its proposal. Discussions, on the other hand, occur when an agency communicates with an offeror with the intent to obtain proposal revisions and include bargaining, give and take, persuasion, and alteration of assumptions and positions. iGov et al., B-408128.24 et al, Oct. 31, 2014, 2014 CPD ¶ 329 at 10. When an agency holds discussions with one offeror it must hold them with all offerors in the competitive range. Booz Allen Hamilton, Inc., B‑405993, B-405993.3, Jan. 19, 2012, 2012 CPD ¶ 30 at 10. Communications that do not permit an offeror to revise or modify its proposal, but rather permit the offeror to explain what it has already proposed to do, are clarifications, not discussions. Id.

The agency argues, and we agree, that the information SeKon provided regarding personnel was the result of clarifications, not discussions. In this regard, the agency did not undertake the exchange with the intent of allowing SeKon to revise its proposal, and, in fact, specifically advised SeKon that it would not be permitted to do so. Rather, the agency asked for the information so that it could confirm the conclusions it reached while performing its cost evaluation. In this regard, both the names of the employees and the rates were included in the proposal, and the agency merely sought to ensure that it had correctly mapped the cost proposal to the technical proposal. Further, we note that, contrary to Sevatec’s allegations, the information was not sought or used to evaluate SeKon’s technical proposal. Since SeKon was not permitted to materially revise its proposal, and the information was not needed to determine that SeKon’s proposal was acceptable, the communications did not constitute discussions.  (Sevatec, Inc. B-410665, B-410665.3: Jan 21, 2015)  (pdf) 

Clarifications are “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. See FAR § 15.306(a)(2). Communications that do not permit an offeror to revise or modify its proposal, but rather request that the offeror confirm what it has already committed to do, are clarifications and not discussions. Highmark Medicare Servs., Inc., et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 11. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Id.

Here, the express terms of both RFPs indicated that an offeror’s failure to submit a surety letter would be a mandatory basis for disqualification. RFP-0316 at 67; RFP-0317 at 67. This term, in each solicitation, made submission of a surety letter a material requirement for each RFP. See The Walsh-Vaughn JV, B-407998.2, B‑407998.4, May 21, 2013, 2013 CPD ¶ 134 at 7 (failure to provide an electronic version of a construction schedule, even though paper copy was submitted, is a deficiency when the electronic version is required by the RFP). Consequently, the CO’s e-mails requesting the surety letters constituted discussions since HPC’s proposals, which did not initially conform to either solicitation’s requirements, could only be made acceptable after the protester submitted the surety letters. That said, we do not agree that the agency could not remedy its misstep by belatedly recognizing that its request of the letters would constitute discussions and by returning the situation to the status quo ante by electing not to consider the submission provided by HPC.

In certain very limited circumstances, where a communication is the result of a mistake on the part of a contracting officer, an agency is not required to consider the information it requested. The Saxon Corp., B-232694.2 et al., June 13, 1989, 89-1 CPD ¶ 553 at 2-3 (even if agency asked for and refused to consider information requested, discussions need not be held where the intent was to make award on the basis of initial proposals, and where agency action did not impinge on the integrity of the competitive system). When an agency intends to make an award on initial proposals, the integrity of the competitive system would not be enhanced by requiring that revisions be solicited and considered from all offerors. See Rainbow Technology, Inc., B-232589, Jan. 24, 1989, 89-1 CPD ¶ 66 at 4-5; The Saxon Corp., supra.

Here, the terms of the solicitations notified all offerors that the agency intended to make award on the basis of initial proposals. The record establishes that the CO’s communications with the protester were not intended to be discussions. Moreover, before the VA’s source selection boards started deliberations, the agency recognized that by requesting the surety letters the agency would initiate discussions, and recognized the unintended impact on these procurements. The record reflects that in order to correct this error and to ensure that the award would be made on the basis of initial proposals, as provided by the RFPs, the agency did not consider HPC’s surety letters and evaluated the proposals based upon only the initial submissions. Accordingly, we find that the agency’s decision to eliminate the protester from the competitions was reasonable.  (Hamilton Pacific Chamberlain, LLC B-411294, B-411301: Jul 6, 2015)  (pdf)

The protester challenges the agency’s evaluation of AMH’s quotation as technically unacceptable, asserting that it addressed the agency’s concerns in its response to the agency’s questions. The agency maintains that AMH’s quotation was unacceptable for failure to comply with the solicitation requirements for the required heavy duty bucket, quick coupler, hydraulic line for the quick coupler, and “maximum extended warranty.” AR, Tab 16, Contracting Officer’s Statement of Facts. Regarding the questions asked of AMH concerning both the extent and cost of the warranty and the hardware to be provided, the agency asserts that the questions were intended as clarifications only, not discussions, and therefore did not provide AMH an opportunity to modify its quotation so as to render it acceptable. Aff. of Contracting Officer ¶¶ 20-23.

Clearly stated solicitation requirements are considered material to the needs of the government, and a quotation that fails to conform to such material terms is technically unacceptable and may not form the basis for award. 4D Sec. Solutions, Inc., B-400351.2, B-400351.3, Dec. 8, 2008, 2009 CPD ¶ 5 at 4. Further, in the case of a brand name or equal solicitation, the particular features of a brand name item set forth in a solicitation are presumed to be material and essential to the government’s needs. Sourcelinq, LLC--Protest and Costs, B-405907.2 et al., Jan. 27, 2012, 2012 CPD ¶ 58 at 3. With respect to a firm offering an equal product, the quotation must demonstrate that the product conforms to the salient characteristics listed in the solicitation. Nas/Corp-Telmah, Inc., B-405893, Jan. 10, 2012, 2012 CPD ¶ 88 at 2; OnSite Sterilization, LLC, B‑405395, Oct. 25, 2011, 2011 CPD ¶ 228 at 2. If the firm fails to do so, its product is properly rejected as technically unacceptable. Id.

Here, by AMH’s own admission during its email exchange with the agency, AMH’s quotation as submitted by the closing time did not meet at least one of the solicitation requirements, that is, the requirement that the vendor offer its “maximum extended warranty.” Instead, AMH offered to provide the required maximum warranty for an additional $25,000. Evaluation of AMH Quotation, Email from AMH to Contract Specialist, Sept. 30, 2014.

AMH asserts that its email responses to the agency’s questions, in which it offered its extended warranty, should have resolved the agency’s concerns with respect to the warranty. The record, however, indicates that AMH was not afforded an opportunity to modify its quotation so as to substitute its extended warranty for the lesser warranty initially quoted. In this regard, although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures. See ERIE Strayer Co., B-406131, Feb. 21, 2012, 2012 CPD ¶ 101 at 4; Kathryn Huddleston and Assocs., Ltd., B-289453, Mar. 11, 2002, 2002 CPD ¶ 57 at 6. FAR §15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. Clarifications are “limited exchanges” between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); ERIE Strayer Co., supra; Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. eMind, B-289902, May 8, 2002, 2002 CPD ¶ 82 at 5. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD ¶ 108 at 6; see FAR §15.306(d).

While the contract specialist’s questions to the vendors were not explicit that the agency intended its inquiries to be requests for clarifications and not discussions, the contracting officer states that he asked the contract specialist only to request clarifications, and that the evaluation was based upon the quotations as initially submitted by the 10 a.m. closing time. Aff. of Contracting Officer ¶¶ 10, 18, 19, 21, 22. These statements are consistent with the contemporaneous evaluation record, where both technical evaluations of AMH’s quotation evaluated the quotation as unacceptable for failing to satisfy material terms of the RFQ. Evaluation of AMH Quotation. Where, in response to clarification requests, an agency receives information that seeks to materially modify a proposal or quotation, we will not consider the communications to be discussions where the agency does not rely on the modification in its evaluation. S4, Inc., B-299817, B‑299817.2, Aug. 23, 2007, 2007 CPD ¶ 164 at 7.  (American Material Handling, Inc. B-410899: Mar 12, 2015)  (pdf)

L&G complains that Trinity should have been found ineligible for award, because Trinity’s proposal--prior to corrective action--allegedly did not contain any commitment to comply with the RFP’s subcontracting limitation. L&G also argues that the Air Force’s exchange with Trinity was improper because it went beyond a mere clarification and constituted discussions by permitting Trinity to revise a deficient proposal.[7] Importantly, L&G does not dispute that Trinity’s response here fully indicates the awardee’s intent to comply with the subcontracting obligation, as does Trinity’s actual post-award performance. We have examined the issues raised by the protester and find they provide no basis on which to sustain the protest.[8]

Contracting officials in negotiated procurements, such as this, have broad discretion to take corrective action where the agency determines that such action is necessary to ensure 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. This includes determining the means necessary to remedy the identified shortcomings. We generally will not object to corrective action that places all offerors in the same competitive posture they enjoyed prior to the defect in the source selection process. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD ¶ 140 at 8. In our view, the corrective action taken here is well within the broad discretion afforded to contracting agencies in these circumstances.

Clarifications are “limited exchanges” between an agency and an offeror for the purpose of clarifying certain aspects of a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8. Discussions, on the other hand, occur when 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. Highmark Medicare Servs., Inc. et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 11; see FAR § 15.306(d). In situations where there is a dispute regarding whether an exchange between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Id.; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5.

Contrary to L&G assertion, we find that the agency’s exchange with Trinity here did not constitute discussions. The Air Force’s June 3 letter to Trinity merely sought verification of the offeror’s intent to comply with its subcontracting obligations during performance, and did not provide for the submission of a revised proposal. Similarly, Trinity’s response merely explained an aspect of the offeror’s proposal that was otherwise vague. Quite simply, in light of the ambiguity in Trinity’s proposal, the Air Force, consistent with its letter stating its intent to take corrective action in response to L&G’s prior protest, conducted a limited exchange with the offeror to clarify the ambiguity. As such, the exchange here constituted clarifications. See FAR § 15.306(a); LOGMET LLC, B-405700, Dec. 14, 2011, 2011 CPD ¶ 278 at 3 (agency letter seeking confirmation of understanding of subcontracting obligations during performance constituted clarifications).  (L&G Technology Services, Inc., B-408080.2: Nov 6, 2013)  (pdf)

Kardex protests its technical evaluation, arguing, among other things, that the VA conducted misleading and non-meaningful discussions by failing to advise Kardex that its climate-controlled storage units did not comply with the specification for totally self-contained cooling systems. See Protest at 9; Comments at 5.

The VA asserts that its communications with Kardex constituted clarifications, not discussions, because the agency merely permitted the protester to explain or clarify its proposed storage units and explicitly prohibited Kardex from revising its quotation. AR at 16.

As a preliminary matter, we note that this competition was limited to FSS vendors. As we have previously noted in our decisions, the procedures of Federal Acquisition Regulation (FAR) part 15 governing contracting by negotiation--including those concerning exchanges with offerors after receipt of proposals--do not govern competitive procurements under the FSS program. FAR § 8.404(a); USGC Inc., B-400184.2 et al., Dec. 24, 2008, 2009 CPD ¶ 9 at 3. There is no requirement in FAR subpart 8.4 that an agency conduct discussions with vendors. See USGC Inc., supra. However, exchanges that do occur with vendors in a FAR subpart 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable; our Office has looked to the standards in FAR part 15 for guidance in making this determination. A-Tek, Inc., B-404581.3, Aug. 22, 2011, 2011 CPD ¶ 188; USCG Inc., supra.

In this regard, we have looked to FAR part 15 as guidance in defining clarifications as “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals (or in this case quotations) or to resolve minor or clerical mistakes. See FAR § 15.306(a)(2); Diversified Collection Servs., Inc., B-406958.3, B-406958.4, Jan. 8, 2013, 2013 CPD ¶ 23 at 11 (using FAR part 15 definitions of post-proposal communications, or exchanges, as guidance in FSS context). Discussions, by contrast, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal or quotations, or provides the vendor with an opportunity to revise or modify its proposal. Diversified Collection Servs., Inc., supra, at 11-12; see FAR § 15.306(d). The agency’s characterization of a communication as clarifications or discussions is not controlling; it is the actions of the parties that determine whether discussions have been held and not merely the characterization of the communications by the agency. See Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5.

Here, the agency’s insistence that the communications it conducted were clarifications and not discussions is unavailing. The communications sent by the agency to Kardex invited the firm to respond to 34 requirements that the firm either “does not meet” or “does not provide info on,” and requested that the firm provide pricing discounts. These communications invited responses from Kardex that were necessary to determine the acceptability of the firm’s quotation, and in fact resulted in Kardex being permitted to supplement its quotation. This is quintessentially the nature of discussions, not clarifications. Diversified Collection Servs., Inc., supra, at 11-12.

More importantly, we conclude that the nature of the communications here were fundamentally unfair. Despite the repeated rounds of discussions with Kardex concerning multiple requirements that the firm’s quotation did not meet, the agency never identified the one requirement for which the quotation was found technically unacceptable--the firm’s failure to provide totally self-contained units. Under the circumstances here, where a firm holds discussions with a vendor, those discussions must be meaningful. See A-Tek, Inc., supra (evaluating whether discussions were meaningful in FSS competition). Since the discussions here were not fair, as required in FAR part 8 procurements, we sustain the protest.  (Kardex Remstar, LLC, B-409030, Jan 17, 2014)  (pdf)

Discussions

P&H argues that the post-evaluation exchange between the VA and Monument constituted discussions, and not clarifications. We agree.

Section 15.306 of the Federal Acquisition Regulation (FAR) describes a range of exchanges that may take place when an agency decides to conduct exchanges with offerors during negotiated procurements. Clarifications are limited exchanges between an agency and an offeror that may occur where, as here, contract award without discussions is contemplated. FAR § 15.306(a). An agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Id. However, clarifications may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or revise the proposal. Superior Gunite, B-402392.2, Mar. 29, 2010, 2010 CPD ¶ 83 at 4. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD ¶ 108 at 6; see FAR § 15.306(d). When an agency conducts discussions with one offeror, it must conduct discussions with all offerors in the competitive range.[4] Gulf Copper Ship Repair, Inc., supra, at 6. Finally, at the conclusion of discussions, the agency must request final proposal revisions. FAR § 15.307(b); Raytheon Technical Servs. Co., B-404655.4 et al., Oct. 11, 2011, 2011 CPD ¶ 236 at 7.

Ultimately, it is the actions of the parties that determine whether discussions have been held, not the characterization of those communications by the agency. Id. In situations where there is a dispute regarding whether communications between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Id. Communications that do not permit an offeror to revise or modify its proposal, but request that the offeror confirm what the offeror has already committed to do in its proposal, are clarifications and not discussions. Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 CPD ¶ 75 at 7.

We find that the exchange with Monument constituted discussions. The proposal amendment Monument provided in response to the exchange constituted a material revision to its proposal. The amendment replaced the sequence of work in Monument’s proposal with a different sequence, and provided the missing narrative that was required by the solicitation. Monument’s response did not, in fact, confirm what it had already committed to do in its proposal, but committed to doing something else. The materiality of the revision is underscored by the fact that the source selection decision relies on it in finding the proposal technically acceptable. Again, as quoted above, the decision expressly states that, “[b]ased on the clarification received from Monument, and . . . a better understanding by the board of what is required for a proposal to be minimally acceptable, the board determined Monument . . . to be the lowest priced technically acceptable proposal . . . .” AR, Tab M, Source Selection Decision Document, at 2.  (Piquette & Howard Electric Service, Inc., B-408435.3, Dec 16, 2013)  (pdf)
 

Although IAP does not challenge the Corps’ rejection of its proposal for exceeding the [task order request for proposals] TORP’s cost limitation of $30 million, it contends that the Corps’ questions concerning the protester’s proposed use of the TA-50 buildings constituted discussions, and that the agency was therefore required to inform IAP that its proposal was ineligible for award because its price exceeded the cost limitation. Specifically, IAP argues that the agency’s questions required or invited IAP to modify its proposal to either assume liability for damage to the storage area, and to propose an alternative plan to using the TA-50 buildings. For the reasons discussed below, we find no basis to sustain the protest.

IAP’s arguments cite FAR part 15 as the primary support for its argument that the Corps engaged in inadequate discussions. Specifically, the protester notes that when an agency engages in discussions with an offeror, FAR part 15 requires that the discussions be “meaningful,” that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision in a manner to materially enhance the offeror’s potential for receiving the award. See Onsite Health Inc., B-408032, B-408032.2, May 30, 2013, 2013 CPD ¶ 138 at 7. FAR part 15 specifically requires that discussions, when held, must address “at a minimum . . . deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.” FAR § 15.306(d)(3).

However, the regulations concerning discussions under FAR part 15, which pertain to negotiated procurement, do not, as a general rule govern task and delivery order competitions conducted under FAR part 16, such as the procurement here. See NCI Info. Sys. Inc., B-405589, Nov. 23, 2011, 2011 CPD ¶ 269 at 6. In this regard, FAR § 16.505 does not establish specific requirements for discussions in a task order competition; exchanges in that context, like other aspects of such a procurement, must be fair and not misleading. CGI Fed. Inc., B-403570 et al., Nov. 5, 2010, 2011 CPD ¶ 32 at 9. Nonetheless, even if FAR part 15 applied here, we conclude that the agency’s questions did not constitute discussions. In this regard, communications that do not permit or require an offeror to revise or modify its proposal, but rather request that the offeror confirm what the offeror has already committed to do in its proposal, are clarifications and not discussions. See Pinnacle Solutions, Inc., B-406998, B-406998.2, Oct 16, 2012, 2012 CPD ¶ 338 at 7; Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 CPD ¶ 75 at 7.

IAP argues that the first question posed by the Corps required the protester to modify its proposal to accept liability for the TA-50 buildings it proposed to use for storage of materials. In this regard, the protester contends that the agency’s question required the contractor to accept “liability” for the buildings, and further argues that such an obligation will require the protester to “compensate third parties for any personal injuries or property damage stemming from the contractor’s performance of this task.” Protester’s Comments (Nov. 7, 2013) at 5. The Corps argues, however, that its question concerning IAP’s proposal to utilize the TA-50 buildings for storage only confirmed the protester’s obligation to repair existing facilities under the terms of the contract. Moreover, the agency contends that the question did not address the broad scope of liability that the protester claims was encompassed by this question. We agree with the agency.

Here, the solicitation required the contractor to take responsibility for damage during construction that might occur to existing facilities, including the TA-50 buildings. See SOW ¶¶ 2.13(e), 3.11.B.1.c, 3.11.B.1.d, 3.11.B.2.l, 6.1. For example, the SOW stated that the “Contractor is to pay utility bills and repair any damage to the existing site and facilities, to include out buildings, sidewalks, access roads, and furnishings. . . . Any damage to Phase I work [including TA-50 buildings] shall be repaired to new condition at the contractor’s expense.” Id. ¶ 2.1.3(e). The RFP also advised of the contractor’s obligations regarding newly-constructed improvements, such as the TA-50 buildings: “There were improvements made to this facility and site completed under a previous phase of work. Do not damage newly completed work or remove new furniture or accessories.” Id. ¶ 6.1; see also AR at 3.

To the extent the protester argues that the agency’s use of the word “liability” required IAP to assume additional responsibilities, we disagree. IAP maintains that assuming the responsibility to repair or replace any damage to existing facilities or items is not the same as the assumption of liability--which the protester argues imposes an obligation on the contractor to compensate third parties for any personal injuries or property damage stemming from the contractor’s performance of this task.

The Corps’ question, however, discussed IAP’s proposal to use the TA-50 buildings for storage of materials, and in this context asked: “Is the contractor going to take the liability for that facility if damage occurs?” AR, Tab F, Clarification Request and Response 1, at 1. Moreover, the protester’s response clearly discussed its obligations in the context of damage to the buildings: “Although it is our intention to take precautions to mitigate possible damage, we will take full responsibility for the TA-50’s during construction.” Id. We conclude that neither the agency’s question nor the protester’s response expressly addressed liability in terms broader than those anticipated by the SOW, and thus we find no support for the protester’s argument that the question required the protester to assume obligations beyond those set forth in the solicitation. For these reasons, we do not find that the question required or permitted IAP to revise its proposal, and therefore did not constitute discussions. See Pinnacle Solutions, Inc., supra.

We also do not find that the Corps engaged in discussions by asking IAP whether it had an alternate plan to using the TA-50 buildings for storage, in the event the government did not agree to IAP’s proposal to utilize those buildings. As discussed above, with regard to the protester’s proposal to use the TA-50 buildings, the agency asked the following: “If the GOVT does not allow this do they have an alternate plan?” AR, Tab F, Clarification Request and Response 1, at 1. In response, the protester stated, “[i]f we are not allowed to utilize the TA-50’s as storage, then we plan on enclosing two of the covered training areas for storage.” Id. IAP contends that the question required the protester to submit an alternative plan to its proposal to use the TA-50 buildings, and that the protester’s response was a revision to its proposal that triggered the agency’s obligation to conduct discussions regarding its proposed price.

As discussed above, the SOW states that the contractor will be required to prepare a site plan “indicating the proposed location and dimensions of any area to be fenced and used by the Contractor,” and further stated that the plan must “indicate if the use of a supplemental or other staging area is desired.” TORP at 190. The agency notes that this SOW provision pertains to contract performance, and thus neither required offerors to submit site plans as part of their proposals, nor required offerors to seek approval for elements of its site plan, including the use of particular buildings, until after award. AR at 3; Supp. AR (Nov. 21, 2013) at 4. For this reason, the agency argues that neither the protester’s proposal to use the TA-50 buildings, nor its response to the agency’s question pertained to the acceptability of its proposal. In this context, we find that the agency’s inquiry as to whether the protester had an alternative plan pertained to a minor uncertainty, that was not related to the acceptability of the protester’s proposal, and did not permit or require the protester to modify its proposal in a manner that constituted discussions. See Pinnacle Solutions, Inc., supra.

In sum, the record does not show that the agency engaged in discussions with IAP. We therefore conclude that the Corps properly rejected IAP’s proposal because its proposed exceeded the cost limitation.  (IAP-Leopardo Construction, Inc., B-408890, Dec 19, 2013)  (pdf)

We also find no merit to FPM’s argument that it should have been permitted to correct this omission through clarifications. 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.

By contrast, discussions--which are to occur after establishment of the competitive range--involve the agency indicating to each offeror the significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to materially enhance the proposal’s potential for award. FAR § 15.306(d)(3). 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. FPM’s correction of this omission would require the protester to revise its proposal, which would constitute discussions, and not clarifications.  (FPM Remediations, Inc., B-407933.2, Apr 22, 2013)  (pdf)
 

Clarifications Were Properly Conducted

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

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

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

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

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

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

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

Post-Final Proposal Exchanges with Lockheed

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

If an agency holds or reopens discussions with one offeror, it must hold discussions with all offerors whose proposals are in the competitive range. Federal Acquisition Regulation (FAR) § 15.306(d)(1); Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 CPD ¶ 75 at 6. Clarifications, however, are limited exchanges that agencies may conduct to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. FAR §15.306(a)(2); Booz Allen Hamilton, Inc., B-405993, B-405993.2, Jan. 19, 2012, 2012 CPD ¶ 30 at 12. An agency may allow an offeror to correct a mistake or clerical error in a cost proposal through clarifications (as opposed to discussions); both the existence of the mistake or clerical error and the amount intended by the offeror must be apparent from the face of the offer. Joint Venture Penauillie Italia S.p.A; Cofathec S.p.A; SEB.CO S.a.s; CO.PEL.S.a.s., B-298865, B-298865.2, Jan. 3, 2007, 2007 CPD ¶ 7 at 8. Requesting clarification from one offeror does not trigger a requirement that the agency seek clarification from other offerors. Serco Inc., B-406061, B-406061.2, Feb. 1, 2012, 2012 CPD ¶ 61.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Compliance With the Solicitation

Criterion first argues that its protest should be sustained because the CO deviated from the solicitation requirement to seek clarification when a discrepancy existed between an offeror’s Scoring Worksheet and supporting documents. See AR 146-47 (explaining that the CO “verif[ies] that a support document exists for all the evaluation elements in accordance with the Offeror’s [Scoring Worksheet]” and noting that “[a]ny discrepancies will be treated as clarifications”). Criterion asserts that the CO was obligated to seek clarification because its proposal contained such a discrepancy: Criterion claimed the points but did not submit the requisite supporting materials. Defendant responds that Criterion conflates solicitation provisions concerning the initial screening and the verification process, which are step two and step four in the evaluation process described above. Specifically, defendant asserts that the CO was only obligated to seek clarification regarding discrepancies at the initial screening stage, which was when the CO determined whether the offeror submitted a document for each claimed point without reviewing the substance of the document. Based on that understanding, defendant contends that the CO complied with the terms of the solicitation because there was no discrepancy at the screening stage since Criterion submitted documents purporting to substantiate its points for CAS certification.

There is no dispute that “a fundamental tenet of procurement law [is] that proposals must be evaluated in accordance with the terms of the solicitation.” Ashbritt, Inc. v. United States, 87 Fed. Cl. 344, 374 (2009). But Criterion has not shown that the CO failed to abide by the solicitation terms. The CO, according to the solicitation, was only required to treat discrepancies between the Scoring Worksheet and submitted materials as mandating clarification when performing step two of the evaluation process: determining whether there was a document submitted for the claimed points. AR 146-47. While performing that step, the CO’s lone task was to determine whether a supporting document was present; the CO did not consider whether the substance of the provided document verified the claimed points—that determination was part of step four. Id.; see also supra Section I.A.2 (describing evaluation process). In short, the GSA’s reference in the solicitation to a discrepancy that required clarification only pertained to whether the offeror had claimed points but failed to submit supporting documents. Criterion’s error did not fall into that category; Criterion acknowledges submitting supporting documents, and the CO confirmed such a submission while performing step two of the evaluation process. AR 1393 (noting that a “matching file was provided within the offer as indicated in the submitted J.P-1” for Criterion’s CAS component). Simply stated, there was no discrepancy for which the CO was obligated to treat as a clarification because the CO correctly found that “[a]ll files [were] accounted for in the proposal.” Id. Thus, the CO’s decision to not seek a clarification was in accord with the terms of the solicitation.

B. Clarification

Criterion next argues that the CO abused his discretion by not seeking clarification regarding the incorrect audit materials. Specifically, Criterion asserts that the missing government audit could be redressed through a clarification because such an exchange would merely confirm the company’s representation that it was eligible for the points rather than changing the terms of the proposal. Criterion further contends that the CO was obligated to seek that clarification because the discrepancy between the claimed points and the supporting materials was apparent. Defendant counters that Criterion’s failure to provide the materials specified in the solicitation is not subject to clarification. Defendant also argues that the CO did not abuse his discretion by declining to seek clarification because the existence of the purported error is not apparent.

The FAR provides the framework for evaluating Criterion’s argument that its protests should be sustained because the CO did not seek clarification regarding the missing government audit. “Clarifications are limited exchanges[] between the Government and offerors, that may occur when award without discussions is contemplated.” FAR 15.306(a)(1). Indeed, “offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.” FAR 15.306(a)(2) (emphasis added). Flowing from the permissive wording of the regulation, the CO’s decision to seek (or not to seek) clarification from an offeror is within his discretion. Id.; see BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 509 (2013) (“[T]he regulatory provisions regarding mistakes discovered before award in bids for negotiated procurements are largely discretionary.”). But see Camden Shipping Corp. v. United States, 89 Fed. Cl. 433, 438 (2009) (“[T]he agency is required to seek clarification only in the case of a clerical error.”).

The permissive nature of clarifications does not insulate from judicial review a CO’s decision to not seek clarification. BCPeabody, 112 Fed. Cl. at 512 (“[The court] cannot accept the implication that there are never situations in which a contracting officer’s discretion would be abused by a failure to seek clarification.”). Defendant is correct that a critical component of evaluating a CO’s decision to not seek clarification is whether the CO should have discerned that the protestor made an error rather than a deliberate decision. See Dell Fed. Sys. v. United States, 133 Fed. Cl. 92, 106 (2017) (deeming relevant the fact that the government “had notice that a clerical error had likely occurred”); Level 3 Commc’ns, LLC v. United States, 129 Fed. Cl. 487, 505 (2016) (giving weight to the fact that the offeror made representations in the proposal concerning the substance of the missing information); BCPeabody, 112 Fed. Cl. at 512 (considering that the offeror submitted a duplicate page and that the CO knew the substance of the missing information); Griffy’s Landscape Maint. LLC v. United States, 46 Fed. Cl. 257, 259- 60 (2000) (requiring clarification when the missing information “clearly indicate[d] a clerical mistake”). Indeed, Criterion has not provided (and the court is not aware of) any precedent in which the United States Court of Appeals for the Federal Circuit or this court held that a CO abused his discretion by not seeking clarification when the error was not apparent. Therefore, the obviousness of the error is an important aspect of determining whether the CO acted reasonably by not seeking clarification.

In light of the above, the CO appropriately exercised his discretion. First, Criterion fails to show that the CO had any reason to suspect that its submission of the private audit was an error rather than a deliberate choice. Criterion does not direct the court to any evidence before the CO that suggested that the missing government audit was unintentionally omitted. Although Criterion avers that the error was apparent because it claimed the CAS points on the Scoring Worksheet without submitting the required documents, the fact that Criterion submitted a private audit undermines its position. Indeed, Criterion’s submission of a private audit—despite the clear terms of the solicitation, including directly on-point questions and responses—strongly suggests an intentional decision rather than a mistake. Second, the CO’s decision is also reasonable given that offerors were on notice that the GSA intended to “strictly enforce all of the proposal submission requirements.” AR 402; see also id. at 107 (“Omission of any information from the proposal submission requirements may result in rejection of the offer.”). To seek clarification from Criterion, CO would have had to disregard that directive, which would undermine the GSA’s expressed interest in receiving accurate (and complete) proposals. Under these circumstances, Criterion fails to demonstrate that the CO abused his discretion by not seeking clarification.

C. Informality and Minor Irregularity

Finally, Criterion argues that the CO abused his discretion by not waiving its failure to submit the proper supporting documentation as an informality and minor irregularity pursuant to FAR 52.215-1. Relying on an analogous provision in the FAR pertaining to sealed bid procurements, Criterion contends that the omission was an informality and minor irregularity because the missing government audit did not affect the substance of its accurate representation in the Scoring Worksheet that it had a DCAA audit. Indeed, Criterion asserts that (1) it has a DCAA audit and (2) its private audit tracked the procedures used by the DCAA. Criterion thus asserts that the CO was obligated to either waive the requirement that the supporting materials come from a government agency or permit Criterion to cure the deficiency by submitting its DCAA audit materials. Defendant responds by arguing that the requirement for a government audit was a material component such that the CO could not waive the condition.

The incorporation of FAR 52.215-1 into the solicitation permitted, but did not require, the CO to waive informalities or minor irregularities. See FAR 52.215-1(f)(3) (“may waive”); see also Andersen Consulting v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992) (explaining that use of the word “may” permits an agency to use its discretion). Thus, the CO’s decision to not waive the deficiency is reviewed for abuse of discretion. Progressive Indus., Inc. v. United States, 129 Fed. Cl. 457, 474 (2016) (reviewing analogous provision applicable to sealed bids for abuse of discretion).

Criterion fails to demonstrate that the CO abused his discretion by not waiving the purported informality and minor irregularity. Assuming, for the sake of argument, that Criterion’s submission of a private audit was an informality and minor irregularity, there were strong factors counseling against waiving the requirement for the government audit. First, Criterion receiving a waiver would undermine the GSA’s interest in ensuring that offerors submit compliant offers. The GSA stressed this objective in this solicitation by informing offerors that it (1) would strictly enforce proposal requirements and (2) might reject any proposal omitting required information. Despite these warnings, Criterion did not comply with the guidance that a private audit was insufficient. The nature of Criterion’s non-compliance—failing to follow an explicit (and repeated) instruction—weighs against a waiver. Second, the CO providing a waiver would be ill-advised given that there is no indication he had the means to assess whether Criterion’s private audit is the functional equivalent to the required government audit. The GSA plainly afforded significance to offerors having a robust accounting system and chose government audits as a method of evaluating those systems. Although Criterion’s auditor used the government form and purportedly followed government procedures, the CO could not discern the accuracy of the submission or the rigor with which the private accounting firm conducted its audit. And to the extent that Criterion is arguing that the GSA’s decision to not accept private audits was unreasonable, the company has waived the right to challenge the requirements of the solicitation by not challenging the requirement before the proposal submission deadline. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (“A party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.”)  (Criterion Systems, Inc. v. U. S., No. 18-785C, September 19, 2018)

 B. Award without Discussions

As the GAO stated, when an offeror is obliged to make a change in the key personnel included in its proposal, the agency has a choice between evaluating the original proposal as submitted, or opening discussions to allow for modified proposals. See CHS, 2018 WL 3047041, at *3 n.2 (“When the agency is notified of the withdrawal of a key person, it has two options: either evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or open discussions to permit the offeror to amend its proposal.”) (citing Gen. Revenue Corp., B-414220.2, 2017 CPD ¶ 106, 2017 WL 2130370, at *17 (Comp. Gen. Mar. 27, 2017)). Chenega suggests that it is bad policy to allow an agency to evaluate a proposal, as submitted, when the proposal contains an obviously invalid key personnel commitment. ECF No. 5 at 25-27. This court, however, does not review procurement policy, it reviews award decisions under the arbitrary and capricious standard of review. This is a highly deferential standard of review. Advanced Data Concepts, 216 F.3d at 1058.

Here, where the agency informed offerors that DOE intended to award without discussions, any post-submission key personnel change ran the risk of rendering the offeror’s proposal unacceptable, with no opportunity to cure the defect during discussions. Indeed, the solicitation contained an explicit warning that the letter of commitment from the proposed General Manager was necessary and material, and that elimination from consideration was possible in the absence of such a letter. ECF No. 3-1 at 85. The agency thus possessed the discretion to award without discussions in precisely the scenario that Chenega encountered, and the court finds no abuse of discretion in the agency’s decision to complete its evaluation of proposals without entering into a round of discussions with the offerors. Further, in the court’s view, although DOE could have proceeded differently, its decision to award without discussions was neither arbitrary nor capricious.

The GAO’s analysis of DOE’s decision to award without discussions, notwithstanding the proposed substitution of Mr. Miller for Mr. Russell, is persuasive. See CHS, 2018 WL 3047041, at *5. First, the GAO noted that the solicitation stated DOE’s intent to award without discussions, and that “a contracting officer’s discretion in deciding not to hold discussions is quite broad.” Id. (citation omitted). Second, the GAO observed that there are no specific statutory or regulatory constraints on the agency’s discretion to not hold discussions. Id. (citations omitted). Third, the GAO observed that there is no requirement that an agency engage in discussions with a “technically unacceptable offeror,” such as Chenega. Id. (citation omitted). On this basis, the GAO found no reason to sustain Chenega’s protest which challenged DOE’s decision not to enter into discussions with the offerors in this procurement. Id.

The court must agree with the GAO’s analysis. Contracting officers generally have broad discretion regarding whether or not to engage in discussions with offerors before award. See, e.g., Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1327-29 (Fed. Cir. 2011) (Allied) (holding that solicitation language indicating that any discussions would be held at the discretion of the contracting officer signified that the agency was not required to engage in discussions before disqualifying the protestor’s proposal). Although the agency’s discretion is not unlimited, see JWK Int’l Corp. v. United States, 279 F.3d 985, 988 (Fed. Cir. 2002) (stating that a contracting officer possesses discretion to not conduct discussions unless there is evidence in the record of bad faith or an abuse of discretion) (citation omitted), DOE’s conduct here falls well within a reasonable exercise of discretion.

The general rule is that once offerors are warned that the agency intends to award without discussions, absent special circumstances, the contracting officer has the discretion to award without discussions. See, e.g., Rig Masters, Inc. v. United States, 70 Fed. Cl. 413, 422 (2006) (noting that Day & Zimmermann Services v. United States, 38 Fed. Cl. 591, 604 (1997), was an unusual case where other flaws in the procurement rendered the contracting officer’s decision not to engage in discussions an improper one). Here, there are no special circumstances or identified flaws in the agency’s evaluation of proposals. Instead, Chenega had to abandon its reliance on the General Manager it had originally proposed to the agency. In these not unusual circumstances, DOE acted within its discretion to award without discussions. Chenega’s protest cannot be sustained on this ground, because DOE’s award without discussions was neither arbitrary nor capricious, and did not constitute an abuse of discretion. (Chenega Healthcare Services, LLC v. U. S. and Kupono Government Services, LLC, No. 18-861C, July 26, 2018)

DIA’s [Defense Intelligence Agency] Decision Not to Seek a Clarification from Sev1Tech. . . .

Sev1Tech also alleges that DIA acted arbitrarily when it declined to seek a clarification from Sev1Tech regarding its missing cells pursuant to FAR 15.306(a)(2), which states:

If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror's past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.

FAR 15.306(a)(2). In its April 23, 2015 MFR regarding Sev1Tech’s missing prices, DIA decided not to seek clarification from Sev1Tech, stating: “It is . . . the Government’s opinion that this is a material deficiency and is not a minor or clerical error that can be resolved during clarification since the intended offer is not apparent on the face of the proposal.” Sev1Tech recognizes that that FAR 15.306(a)(2), as well as the three references to clarifications in the solicitation in Sections L.3, M.2b, and M-1.8 are worded permissively. Sev1Tech, however, cites BCPeabody Construction Services, Inc. v. United States, 112 Fed. Cl. at 512, for the proposition that this court will review such discretion to ensure that it was reasonably based on the particular circumstances of the procurement. Sev1Tech argues that the present case involves an abuse of discretion because Sev1Tech’s omissions were “obviously” clerical errors and any correction could have been tested against its statements in its price volume and the other cells in the spreadsheet.

As conceded by Sev1Tech, FAR 15.306(a)(2) is worded permissively, providing that the government “may” grant offerors the opportunity to provide clarifications of “minor or clerical errors.” Indeed, “[t]his court has repeatedly recognized the permissive nature of this regulation in the context of negotiated procurements.” ST Net, Inc. v. United States, 112 Fed. Cl. at 109-10 (citing Mil–Mar Century Corp. v. United States, 111 Fed. Cl. 508, 534–35 (2013); Linc Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 715 (2010); Chenega Mgmt., LLC v. United States, 96 Fed. Cl. 556, 586 (2010)). While this discretion may not be total, at the very least it means that the government has no obligation to seek clarifications when it justifiably determines that an offeror has made a material omission. See Bus. Integra, Inc. v. United States, 116 Fed. Cl. at 337; ST Net, Inc. v. United States, 112 Fed. Cl. at 110-11. The case cited by defendant, BCPeabody Construction Services, Inc. v. United States, 112 Fed. Cl. 502, is not to the contrary, as it involved an omission relating to the offeror’s past work experience that “did not impair the contracting officer's ability to evaluate [the offeror’s] fitness or price quote for the contract.” Id. at 512. Indeed, BCPeabody explicitly distinguished ST Net, Inc. v. United States, which held that the government had reasonably exercised its discretion not to seek a clarification, on the grounds that “in ST Net, the protestor had omitted material pricing information.” Id. at 511 (citing ST Net, Inc. v. United States, 112 Fed. Cl. at 109-10). As discussed above, Sev1Tech’s failure to complete the pricing spreadsheet was reasonably considered by the agency to be a material error, which prevented DIA from evaluating the price of its proposal in the best-value analysis in the manner described in the solicitation. Because the omission was material, DIA did not have an obligation to request a clarification from Sev1Tech and its decision not to do so was not arbitrary, capricious, or an abuse of discretion. See ST Net, Inc. v. United States, 112 Fed. Cl. at 111 (“Given the clear importance DHS placed on offerors carefully and properly providing the required information, the court cannot say that DHS was obligated under FAR 1.602–2(b) and 15.306(a) to seek clarifications where information was missing or wrong, or that DHS's decision to forgo clarifications was arbitrary, capricious or an abuse of discretion.”).

Sev1Tech also argues that DIA’s decision to request a clarification from the other seven offerors, two of whom were ultimately awarded contracts, whose proposals contained incomplete pricing spreadsheets, but not from Sev1Tech, amounted to impermissible, disparate treatment. In its April 27, 2015 MFR titled “Contracting Officer’s Record of Decisions to Clarify Incomplete Price Volumes for the Enhanced Solutions for the Information Technology Enterprise (E-SITE) solicitation,” DIA stated that, for these seven other offerors, “the Government could ascertain the Offerors’ intended prices by calculating the intended escalation rates to the hundredth of the percentage. . . . The intended prices were apparent from the face of the proposal. Clarifications were conducted with these Offerors.”

(sections deleted)

Sev1Tech argues that this explanation for the different treatment of Sev1Tech and the other seven offerors with missing labor rates was neither coherent nor reasonable and, therefore, DIA abused its discretion in failing to request a clarification from Sev1Tech. As evidence of DIA’s alleged, unequal treatment, Sev1Tech points to findings DIA made regarding AiNET, DKW, and Progressive. With respect to AiNET, Sev1Tech notes that DIA found that “a large majority” of the overseas labor rates it sampled did not adhere to the [redacted]% escalation rate for which DIA ultimately requested a clarification, and that AiNET, unlike Sev1Tech did not include a narrative statement in its proposal stating its intended escalation rate. With respect to DKW, Sev1Tech argues its situation and DKW’s were “identical, except that DKW had many more blank cells.”15 DKW provided an escalation rate in its proposal of [redacted]%, but, according to Sev1Tech, in the non-blank cells, DKW’s escalation rate was sometimes more than [redacted]%, and sometimes less than [redacted]%. With respect to Progressive, Sev1Tech argues that, unlike for itself, DIA found that there was no escalation rate pattern for the majority of the non-missing labor rates. Sev1Tech does not specifically address the other four offerors of the seven offerors from which clarification was sought, i.e., Jupiter, RiiTE, Sotera, and Syneren, whose proposals also contained missing labor rates. Sev1Tech also argues that any clarification request to it from DIA would not have amounted to impermissible discussions, rather than clarifications, because, Sev1Tech argues, the omissions were minor or clerical errors and the United States Court of Federal Claims has “repeatedly and expressly stated that agency communications with an offeror to allow correction of minor mathematical errors in an offeror’s proposal are clarifications and not discussions.” (citing DynCorp Int'l LLC v. United States, 76 Fed. Cl. at 545; Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1333; Int'l Res. Recovery, Inc. v. United States, 64 Fed. Cl. 150, 162 (2005). Sev1Tech argues that, based on this precedent, the government cannot argue that asking Sev1Tech whether the [redacted]% escalation rate it allegedly stated in its price volume was meant to apply to the [redacted] missing cells would have amounted to anything but a permissible clarification under FAR 15.306(a)(1).

Defendant responds by arguing that DIA carefully examined the price proposals of each of the eight offerors with missing labor rates to determine whether the intended rates for the missing cells were “apparent form the face of the proposal.” DIA allegedly did so using the same methodology for each of the eight, looking to see if there were consistent patterns in the offerors’ escalation rates. According to defendant, in the case of each of the seven other offerors, DIA was able to reasonably conclude that there was sufficient consistency to calculate the intended rates for the missing cells. In the case of Sev1Tech, however, defendant argues that DIA reasonably concluded that they were not able to make the necessary calculations because of the “anomalies” in Sev1Tech’s escalation rates DIA discovered applying its methodology. According to defendant, DIA reasonably concluded it could not determine Sev1Tech’s missing prices from the face of its proposal as it could for the other seven offerors, and, therefore, Sev1Tech was not treated disparately vis-à-vis any other offeror.

Defendant cites to GAO decisions which have “held that when missing prices are not ‘apparent from the face of the proposal,’ agencies cannot allow offerors to fill-in the missing prices through ‘clarifications,’ pursuant to FAR 15.306(a), but rather, allowing offerors to fill-in the missing prices in this circumstance would constitute ‘discussions.’” (citing gMg Mgmt., Inc., B-409628.2, 2014 CPD ¶ 206, 2014 WL 3427148, at *3 (Comp. Gen. July 8, 2014); Manthos Eng’g, LLC, B-401751, 2009 CPD ¶ 216, 2009 WL 3723138, at *2 (Comp. Gen. Oct. 16, 2009)). The gMg Mgmt., Inc. case, a recent GAO decision, involved circumstances closely analogous to those of the present case. There, as in the above captioned case, the solicitation required offerors to complete a pricing spreadsheet with proposed rates for various labor categories, and a disappointed offeror inadvertently omitted rates for a number of cells in the version of spreadsheet it submitted with its proposal. See gMg Mgmt., Inc., 2014 WL 3427148, at *1-2. The GAO held that, because it was not clear “from the face of the proposal” what rates the offeror, gMg, intended to propose for the omitted cells in pricing spreadsheet, “allowing gMg to correct its proposal would represent the correction of a material proposal defect and, therefore, would have constituted discussions.” Id. at *3. The court also notes that the GAO’s “from the face of the proposal” standard was cited approvingly by the United States Court of Federal Claims in an opinion cited by Sev1Tech. See DynCorp Int'l LLC v. United States, 76 Fed. Cl. at 545 (“‘An agency may allow an offeror to correct a clerical error in a cost or price proposal through clarifications, as opposed to discussions, where the existence of the mistake and the amount intended by the offeror is clear from the face of the proposal.’” (quoting IPlus, Inc., B298020, 2006 WL 1702640, at *4 (Comp. Gen. June 5, 2006))). Defendant argues that, even if the court does not follow the GAO’s decisions on this issue, it was “inherently reasonable” for DIA to have followed GAO precedent because it would have provided disappointed protestors with a viable protest ground at the GAO, and probably in this court as well, which according to defendant, treats GAO decisions as “expert opinions,” quoting Am. Auto Logistics LP v. United States, 117 Fed. Cl. 137, 182 (2014), a case decided by the undersigned judge. The court agrees that DIA exercised its discretion in a reasonable and not arbitrary manner, when, after trying unsuccessfully to fill in the missing cells, DIA declined to offer Sev1Tech an opportunity to clarify its offer.  (Constellation West, Inc. v. U. S., Nos. 15-876C; 15-923C, March 25, 2016)  (pdf)

2. By Permitting LMC to Rewrite Its Proposal During the Corrective Action to Conform to the Requirements of the Solicitation, the VA Acted in a Manner That Was Arbitrary and Capricious, Without a Rational Basis, and Contrary to Law

Next, the court turns to plaintiff’s contention that the VA improperly allowed LMC to modify and rewrite its proposal during the corrective action, rather than merely submit clarifications to its proposal. Plaintiff argues that the VA thus exceeded the scope of the corrective action, rendering its confirmation of the contract award to LMC arbitrary and capricious, without a rational basis, or contrary to law. As described earlier, the solicitation provided that the contract would be 100% set aside for an SDVOSB. AR 13, 122. VAAR 852.219-10(a) defines an SDVOSB:

Definition. For the Department of Veterans Affairs, “Service-disabled veteran-owned small business concern”:

(1) Means a small business concern:

(i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans (or eligible surviving spouses);

(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans . . . .

Further, FAR 52.219-14 describes requirements regarding “contracts that have been set aside or reserved for small business concerns.” It provides:

(c) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for—

(1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.

FAR 52.219-14(c). In addition, VAAR 852.219-10(c) sets forth:

A service-disabled veteran-owned small business concern agrees that in the performance of the contract, in the case of a contract for:

(1) Services (except construction), at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other eligible service-disabled veteran-owned small business concerns;

These regulations, taken together, require that for contracts performed by SDVOSBs, at least 50% of the cost of personnel must be expended for employees of an SDVOSB.

There is no dispute that LMC is an SDVOSB. AR 1268. However, LMC’s original proposal provided:

As detailed in our management and Operation plan below, LMC Med Transportation will be managing and performing quality assurance and control on this contract. We have selected Regional Ambulance to subcontract to perform the BLS and ALS Ambulance Service. Our backup plan is to utilize either in full or in part Palmetto Ambulance.

Id. at 375. Thus, LMC’s original proposal made clear that it would subcontract all of its ambulance services to an entity that was not an SDVOSB.5 Further, LMC submitted copies of business licenses for Regional Ambulance Services, Inc. (“Regional Ambulance”), Palmetto Ambulance, and Community Pastor Care, LLC (“CPC”). Id. at 385-92. LMC also provided a “List of All Vehicles in Fleet,” in which it listed vehicles used by Regional Ambulance, as well as those used by CPC. Id. at 397-98. In addition, LMC submitted a chart with a list of drivers that worked for Regional Ambulance. Id. at 400. LMC provided no comparable licenses, list of vehicles, or list of drivers for itself.

Subsequently, when Excelsior filed the present protest, it alleged that LMC had not satisfied the requirement that at least 50% of the contract must be performed by an SDVOSB. Thereafter, defendant took corrective action and sought clarification from the offerors regarding this issue. Defendant sent identical letters to Excelsior and to LMC, explaining:

Upon review of the record, a determination has been made to take corrective action on the reference solicitation. The corrective action requires that each offeror clarifies [its] ability to comply with the contracting limitations as outlined in [VAAR]
852.219-10(c)(1). . . . The clarification must clearly address how the offeror intends to insure [sic] that “at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other eligible veteran-owned small business concerns.”

. . . .

Id. at 1290-91. When LMC responded to defendant’s request for clarification, LMC stated that it was an SDVOSB, and that “[t]hroughout the life of [the] contract, on average[,] LMC [would] be responsible for at least 25% of the cost and personnel performance [sic].” Id. at 1268. LMC further provided that it would “subcontract to Community Pastor Care, another SDVOSB,” such that CPC would “be responsible for an average of 35% of the cost and personnel performance [sic] over the life of [the] contract.” Id. In addition, LMC stated that Regional Ambulance would be “responsible for an average of 40% of the . . . cost and personnel performance throughout the life of [the] contract.” Id. at 1268-69. LMC then concluded:

In summation, LMC and CPC, both SDVOSBs[,] w[ould] take on and perform a minimum of 51% of the cost, labor and performance of this contract each year. On average over the life of [the] contract, LMC and CPC [would] perform a combined average of 59.78%, while Regional Ambulance Service [would] perform on average 40.22% over the same five-year term.

Id. at 1269.

It is evident that there were substantial differences between LMC’s original proposal and its response to the VA’s request for clarification during the corrective action. FAR 15.306(a) provides that “[c]larifications” constitute “limited exchanges, between the Government and offerors,” where “offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.” LMC’s original proposal indicated that the ambulance services would be provided by its subcontractor, Regional Ambulance, and if needed as a backup, Palmetto Ambulance. There can be no serious dispute that LMC’s original proposal was to subcontract 100% of the ambulance services. However, when LMC later responded to the VA’s request for clarification, LMC rewrote its original proposal to conform to the requirements of the solicitation. Rather than attribute 100% of the costs of ambulance services to Regional Ambulance, in its revised proposal submitted in response to the VA’s clarification request, LMC claimed that its subcontractor would only account for 40% of the cost of personnel for contract performance. This major change to LMC’s proposal cannot be reasonably construed as a mere correction of a typographical error or an additional explanation to clarify an ambiguity in its original proposal. To the contrary, the VA erred by permitting LMC to exceed the scope of clarification and make substantial revisions to its proposal so that the proposal would satisfy the requirements of the solicitation.

LMC’s purported clarification also explained that LMC intended to be responsible for 25% of the cost of personnel for contract performance. However, according to LMC’s original proposal, LMC’s participation was limited to contract oversight. In addition, although LMC’s purported clarification stated that CPC would be responsible for 35% of the cost of personnel for contract performance, there was no mention in the original proposal of CPC providing any services, not even as a backup. Although LMC did furnish copies of CPC’s business licenses in the original proposal, there was no discussion of any work that it would perform under the contract. Moreover, whereas Palmetto Ambulance was identified as a backup subcontractor in the original proposal, it was removed from LMC’s revised proposal. Thus, LMC’s clarification did far more than just amplify certain aspects of its original proposal or resolve minor or clerical errors. To the contrary, LMC added itself and a new subcontractor to the rewritten proposal, removed a backup subcontractor from the original proposal, and reduced the amount of services that would have been provided by the main subcontractor that it originally proposed. Consequently, whereas the letter sent by the VA during the corrective action only requested clarification of LMC’s original proposal, LMC responded by making major revisions to its proposal, in violation of the terms of the request. The VA accepted LMC’s revised proposal that was altered to conform to the solicitation, resulting in an unfair competitive advantage for LMC that greatly prejudiced plaintiff.

By contrast, plaintiff made no changes to its proposal when responding to the VA’s request for clarification during the corrective action. In its original proposal, plaintiff submitted a chart that provided a breakdown of prices for ambulance services. Id. at 1009. Plaintiff stated that its employees were “paid in accordance with the appropriate Wage Determination Schedule, satisfying all federal contracting requirements . . . .” Id. at 1005. Further, plaintiff provided a copy of a letter from the VA verifying that Excelsior was an SDVOSB. Id. at 1021. Plaintiff’s original proposal also included a copy of its certificate of liability insurance. Id. at 1022.

In its response to defendant’s request for clarification, plaintiff stated that it was a certified SDVOSB, in accordance with the verification that it had provided originally. Id. at 1270. Further, Excelsior explained that it would be “self-performing 100% of the contract with [its] employees being paid at the required wages set by the Wage Determination and [with] Excelsior owned equipment.” Id. Plaintiff also indicated that “[i]f at some point the volume of calls to a particular outlying area is very small, [it] might consider subcontracting that small percentage of the business to another local ambulance company with other work in that area, with VA approval, but that would generally be less than 5% of the contract.” Id.

In plaintiff’s original proposal, it confirmed that its employees were paid according to the appropriate Wage Determination Schedule, and it repeated this description in its subsequent response letter. Moreover, plaintiff provided a chart with a list of service prices in its original proposal. Thus, when plaintiff later explained that all services would be performed by its employees, and that, if necessary, five percent of the services could be carried out by a subcontractor, it was a statement that clarified and elaborated on the chart that plaintiff previously had provided with its original proposal.

Finally, plaintiff explained in its clarification that it had an established office in Columbia, South Carolina, and that it would provide an Excelsior manager as the primary contact person for the VA from that office. Id. In doing so, Excelsior supplied the VA with further details about the nature of the contract performance that it had originally proposed. Indeed, all of the information that plaintiff included in its response to the VA’s request for clarification did just that, namely, provide clarification; plaintiff did not modify its original proposal in any way.

LMC’s responses to the VA’s request for clarification far exceeded the scope of the VA’s clarification request because they modified LMC’s original proposal to make it compliant with the terms of the solicitation. The VA should have determined that LMC’s original proposal was noncompliant. When the VA later accepted LMC’s revised proposal that complied with the solicitation, the VA gave LMC an unfair competitive advantage because only plaintiff’s proposal was technically acceptable when originally submitted. The VA thus failed to “ensure that [the offerors] received impartial, fair, and equitable treatment,” as required of contracting officers by federal regulation. FAR 1.602–2(b). Indeed, “[g]overnment personnel involved in [an] acquisition” like this one “shall not engage in conduct that . . . [f]avors one offeror over another.” FAR 15.306(e)(1). The VA’s corrective action was therefore conducted in a manner that was unreasonable. Although the VA’s request for clarification was reasonable, it acted in a manner that was arbitrary and capricious by allowing LMC to rewrite its proposal so that it would conform to the requirements of the solicitation. Moreover, the administrative record contains no documentation of the contracting officer’s rationale for determining that it was reasonable to award the contract to LMC after the corrective action. Defendant admits that such documentation is “simply not there.” AR at 20; Oral Arg. 2:02:13, Nov. 10 (Baker). The lack of any documentation explaining the method by which the VA re-evaluated the proposals, including any comparative analysis that it undertook based on the solicitation’s requirements, precludes a finding that the VA’s confirmation of the contract award to LMC had a rational basis. Accordingly, the VA conducted the corrective action in a manner that was arbitrary and capricious, without a rational basis, and contrary to law. See FAR 15.303(b)(3) (“The source selection authority shall . . . [e]nsure consistency among the solicitation requirements, notices to offerors, proposal preparation instructions, evaluation factors and subfactors, solicitation provisions or contract clauses, and data requirements . . . .”).  (Excelsior Ambulance Service, Inc. v. U. S., No. 15-189C December 15, 2015)  (pdf)

Plaintiff argues that the government engaged in exclusive discussions with Entwistle that allowed Entwistle to revise its proposal to make it compliant with the terms of the Solicitation. See Compl. ¶ 117; Pl.’s Resp. 9. Specifically, plaintiff contends that two of the government’s requests for clarification and Entwistle’s responses (the two exchanges) constituted unequal discussions in violation of FAR 15.306. See Pl.’s Mot. 17-20; cf. supra Part I.C (discussing the content of the two exchanges). Plaintiff further contends that “[h]ad the Agency not entered into unequal discussions with Entwistle, it would have concluded that it could not adequately evaluate Entwistle’s significantly lower price for realism and would have rejected its offer.” Compl. ¶ 117; see Pl.’s Resp. 9 (claiming that the alleged discussions “help[ed] make [Entwistle’s] proposal compliant with the RFP’s requirements”). Defendant counters that “[t]here is no reasonable basis for concluding that these two exchanges constituted discussions,” Def.’s Mot. 33, and that, “[e]ven if the agency’s exchanges with Entwistle had constituted discussions, . . . Mil-Mar has not demonstrated that it was prejudiced,” id. at 34. For the following reasons, the court finds that the two exchanges did not constitute discussions and that, therefore, the Agency did not enter into unequal discussions with Entwistle. The court further finds that, even if the two exchanges had constituted discussions, plaintiff has failed to establish prejudice.

“In negotiated procurements, the procuring agency may engage in a wide range of exchanges with offerors in order to facilitate the evaluation process and to permit the agency to make an informed award decision.” Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 714 (2010) (citing FAR 15.306 and ITAC, 316 F.3d at 1320-23). “Different exchanges are permitted under different circumstances and at various stages of the procurement process.” Id. For example, “negotiations” are exchanges “that are undertaken with the intent of allowing the offeror to revise its proposal,” and “discussions” are negotiations that occur “after establishment of the competitive range” in competitive acquisitions. FAR 15.306(d). “The primary objective of discussions is to maximize the Government’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation.” FAR 15.306(d)(2); see ITAC, 316 F.3d at 1322 (“[W]hen discussions are opened, bidders have the opportunity to revise their proposals, in order ‘to maximize the Government’s ability to obtain best value.’” (quoting FAR 15.306(d)(2))). When an agency decides to hold discussions, they “must be conducted . . . with each offeror within the competitive range.” FAR 15.306(d)(1); cf. FAR 15.306(e) (providing that the government “shall not engage in conduct that . . . [f]avors one offeror over another”).

Where, as here, see AR 276 (RFP), a solicitation provides “that the Government intends to evaluate proposals and make award without discussions,” FAR 15.306(a)(3), an agency may engage offerors in clarifications, see FAR 15.306(a). FAR 15.306(a) defines clarifications as “limited exchanges,” FAR 15.306(a)(1), that are intended to give offerors “the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors,” FAR 15.306(a)(2). Unlike discussions, which must be conducted equally with all offerors within the competitive range, see FAR 15.306(d)(1), an agency has the discretion to engage in clarifications with just one offeror, DynCorp Int’l LLC v. United States (DynCorp), 76 Fed. Cl. 528, 540 (2007).

Section L.6.6 of the Solicitation provided that “the Government reserves the right, as a clarification under FAR 15.306(a), to request additional or more detailed price breakdown data to support its determination of price reasonableness.” AR 266 (RFP). Although it is “[t]he actions of the parties, not the characterization by the agency, [that] determine whether discussions have been held,” Allied Tech. Grp., Inc. v. United States (Allied Tech.), 94 Fed. Cl. 16, 44 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011), the agency’s characterization of an exchange as a clarification is entitled to deference from the court, G4S Tech. CW LLC v. United States (G4S), 109 Fed. Cl. 708, No. 12-705C, 2013 WL 935890, at *12 (Fed. Cl. Mar. 12, 2013) (citing ITAC, 316 F.3d at 1323). “Thus, this court must give deference to an agency’s view that an [exchange] was a clarification, as long as that interpretation was permissible and reasonable.” Dyncorp, 76 Fed. Cl. at 542 (internal quotation marks omitted); see ITAC, 316 F.3d at 1323 (stating that the United States Court of Appeals for the Federal Circuit (Federal Circuit) “recently emphasized that the [federal] acquisition regulations entrust the contracting officer with especially great discretion, extending even to his application of procurement regulations” (alteration and internal quotation marks omitted)).

The two exchanges that plaintiff challenges took the form of limited e-mail correspondence between the agency and Entwistle. See supra Part I.C (describing the two exchanges). Each of the government’s requests for clarification included the following disclaimer: “[N]either this communication nor your submission of requested clarification information in response to this communication will constitute discussions as described in FAR 15.306(d) . . . . Be advised that this clarification request does not allow you to modify your proposal, including your proposed prices, in any way.” AR 1848, 1853 (two requests for clarification). In the first request, the Agency asked Entwistle to “clarify the cost (material and labor) associated with fabricating the ISO frame.” AR 1773 (Initial PER). Entwistle responded as follows: “The estimated material cost for the frame is $[* * *]. The estimated labor for fabricating the frame is [* * *] hours.” Id. In the second request, the Agency asked Entwistle to “clarify how [its] proposed labor hours are adequate to carry out the steps necessary for production of the First Article Test items and production quantities.” Id. Entwistle responded as follows: “The production labor hours were estimated for each labor category based on our understanding of the solicitation requirements. Based on our experience with design programs, a factor was applied to the production hours to arrive at the first article labor hours.” Id. at 1774.

Plaintiff argues that these two exchanges amounted to discussions because the Agency “gave Entwistle an opportunity to revise its proposal by asking it to provide material information that was required, but omitted, from Entwistle’s proposal, and that was critical to the Agency’s ability to evaluate the realism of Entwistle’s price.”  Pl.’s Mot. 18 (emphasis omitted); see also Tr. 11:21-23 (Ms. Duncombe) (conceding that the first exchange “gave Entwistle the opportunity to basically cure a proposal deficiency with material information that it had omitted”); Pl.’s Mot. 20 (arguing that, in the second exchange, Entwistle made “its proposal more appealing to the Agency by submitting information that the Agency thought was necessary for its analysis of Entwistle’s proposed price”). Plaintiff also contends that neither exchange is governed by Section L.6.6 of the Solicitation because “the Agency requested Entwistle [to] provide key pricing information not present in its proposal--not additional information or more details.” See Compl. ¶ 78; see Tr. 13:11-14 (Ms. Duncombe) (conceding that “any time the government issues a question to an offeror, . . . it’s going to be asking for additional information”); cf. AR 266 (RFP) (providing in Section L.6.6 that “the Government reserves the right, as a clarification under FAR 15.306(a), to request additional or more detailed price breakdown data to support its determination of price reasonableness”). Defendant responds that plaintiff’s argument “is predicated upon the incorrect assertion that the information provided by Entwistle to the agency during these two exchanges was required by the solicitation.” Def.’s Reply 6; cf. Allied Tech., 94 Fed. Cl. at 45 (determining that an exchange was a clarification partly because “nothing in the Solicitation expressly required” the information requested by the Agency).

The court finds that the information provided by Entwistle in the first exchange--the estimated material cost and labor hours for fabricating the ISO frame--was required by the Solicitation, but that the information provided by Entwistle in the second exchange--an explanation of how its proposed labor hours were estimated--was not. With respect to the first exchange, Section L.6 of the Solicitation required offerors to identify all parts with an estimated cost of $500 or more in their Bill of Material and also to provide their proposed direct labor hours. AR 265-66 (RFP) (stating that offerors “shall” provide this information in Attachment 16); see supra Part I.A.1 (discussing Attachment 16). The record suggests that Entwistle failed to include the cost of the ISO frame in its proposal despite this requirement. See AR 1656-60 (Entwistle’s Attachment 16) (listing no identifiable costs associated with the frame); AR 1785 (Entwistle PER) (observing that Entwistle “did not provide all of the requested information in [the Bill of Material in] Attachment []16”). The record is less clear as to whether Entwistle included in Attachment 16 the [* * *] labor hours it estimated it would take to manufacture an ISO frame. In response to the third request for clarification regarding direct labor hours, which plaintiff does not dispute, see Pl.’s Mot. 18-20 (disputing only the second and fourth requests for clarification), Entwistle provided a corrected Attachment 16, in which Entwistle estimates [* * *] hours of machining and [* * *] hours of welding, see AR 1777 (corrected Attachment 16); AR 1833 (Entwistle PER Addendum) (discussing Entwistle’s corrected Attachment 16). The Agency appears to have viewed the summation of these two categories of work as constituting the [* * *] labor hours estimated by Entwistle to manufacture the frame. See AR 1868 (Aug. 29, 2012 e-mail from Agency engineer Catherine Thomas to contracting officer Yvette Thompson (August 29, 2012 e-mail or Aug. 29, 2012 e-mail)) (stating that, based on her “review of [an] ISO frame on a completed [Load Handling System Compatible Water Tank-Rack Systems] Hippo from [Agency] inventory,” she could not “conclude that an offeror, with [* * *] hours of machining and [* * *] hours of welding, [would] not be able to successfully perform and meet the solicitation requirements”); infra Part III.D.2 (discussing the August 29, 2012 e-mail). The court does not consider this view unreasonable.

With respect to the second exchange, the court agrees with defendant that nothing in the Solicitation required offerors to describe “how offerors estimated their labor hours.” See Def.’s Reply 6; cf. AR 265 (requiring offerors only to provide “the total proposed direct labor hours and direct labor hours broken down by proposed labor category”).

To the extent that Entwistle provided required information that was missing from its proposal through the two exchanges, plaintiff asserts that such information was material information that was necessary for the Agency to evaluate Entwistle’s proposal. See Pl.’s Mot. 18; Tr. 14:7-8 (Ms. Duncombe) (arguing that the Agency sought “material information that was missing from [Entwistle’s] proposal”). As to the information provided in the first exchange, plaintiff contends that the “ISO frame is one of the two most important and expensive parts of the Hippo,” and that without the cost of the frame, the Agency “could not evaluate the realism of Entwistle’s price.” Pl.’s Mot. 19. Indeed, the SSEB considered the frame a “major item” and reviewed the offerors’ cost of the frame in the Initial Price Evaluation Report for the purpose of “test[ing] price realism.” AR 1768 (Initial PER). However, the SSEB also found the information that Entwistle omitted from its Attachment 16, which included the material costs of the frame over $500 and possibly the number of labor hours necessary to manufacture the frame, “was not significantly material to reject [Entwistle’s] proposal.”  AR 1785 (Entwistle PER); cf. AR 277 (RFP) (stating that the contract awardee must meet “all the material requirements of [the] solicitation” (emphasis added)). Determining whether a requirement of the Solicitation is considered a material requirement is a matter within the Agency’s discretion. See Allied Tech., 94 Fed. Cl. at 40 (“[T]he Court only will overturn an agency’s determination that an offeror’s proposal failed to satisfy the material requirements of the solicitation if such a finding was arbitrary and capricious.”). And plaintiff has failed to meet the heavy burden necessary to show that the Agency abused its discretion by finding that the cost of the ISO frame--including materials and possibly labor hours--was not a material requirement. See AR 1785 (Entwistle PER); cf. L-3 Commc’ns I, 83 Fed. Cl. at 650 (“[T]he protestor’s burden is especially heavy in negotiated, best value procurements.”). The court finds that the Agency’s decision had a rational basis and the court will not substitute its judgment for the Agency’s. Cf. Honeywell, Inc., 870 F.2d at 648 (“If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” (internal quotation marks omitted)); Baird Corp., 1 Cl. Ct. at 664 (stating that, under the APA standard of review, the court “should intervene only when it is clearly determined that the agency’s determinations were irrational or unreasonable”).

As to the information provided in the second exchange, the court finds that plaintiff has failed to make any showing that Entwistle’s description of how its proposed labor hours were estimated, see AR 1774 (Initial PER), was material information that was essential for the Agency to evaluate Entwistle’s proposal. Even if the court were to find that, through the two exchanges, Entwistle provided the Agency with information that was essential for the Agency to evaluate Entwistle’s proposal, the Federal Circuit has found that “[t]here is no requirement in [FAR 15.306(a)] that a clarification not be essential for evaluation of the proposal.” ITAC, 316 F.3d at 1323; see id. (rejecting the appellant’s contention that “a clarification cannot call for new information if the information is necessary to evaluate the proposal” (internal quotation marks omitted)). Although plaintiff argues that the facts here are distinguishable from those before the Federal Circuit in ITAC, see Tr. 15:23-16:23 (Ms. Duncombe); Pl.’s Resp. 8-9, the Federal Circuit’s reading of FAR 15.306(a) is not fact-dependent. Thus, an exchange can constitute a clarification, and not a discussion, even where the information provided was “essential to evaluation criteria, increase[d] a past performance score or tip[ped] the scales toward the offeror providing the clarification.” DynCorp, 76 Fed. Cl. at 542 (citing ITAC, 316 F.3d at 1323). This is in line with the Federal Circuit’s caution against “cramped conception[s] of ‘clarification[s],’” which are “not in harmony with the stated purpose of the 1997 amendments [to the FAR], . . . to ‘[s]upport[] more open exchanges between the Government and industry.’” ITAC, 316 F.3d at 1323 (some alterations in original) (quoting Federal Acquisition Circular 97-02, 62 Fed. Reg. 51,224, 51,224 (Sept. 30, 1997)); cf. supra note 28 (discussing the 1997 amendments to the FAR).

Moreover, as defendant correctly notes, see Def.’s Mot. 33, the Agency neither sought nor received revisions to the terms of Entwistle’s proposal, cf. ITAC, 316 F.3d at 1322-23 (finding that, partly because the government did not give the offeror “the opportunity to revise its proposal, and [the offeror] did not change the terms of its proposal to make it more appealing to the government,” the exchanges in question “did not constitute discussions”); G4S, 2013 WL 935890, at *12 (finding that exchanges were clarifications partly because the record did not “suggest that any negotiations took place” or, “[m]ore importantly, . . . that [the offeror] was given the opportunity to revise its proposal”); Allied Tech., 94 Fed. Cl. at 45 (finding that exchanges were clarifications partly because the offeror “provided no revisions or changes to its pricing in light of the [agency’s] inquiry”); DynCorp, 76 Fed. Cl. at 544 (same); SecureNet Co. v. United States, 72 Fed. Cl. 800, 815 (2006) (same). Indeed, the record does not suggest that the two exchanges at issue here were “undertaken with the intent of allowing [Entwistle] to revise its proposal.” See AR 1848, 1853 (two requests for clarification) (stating that clarifications are “necessary to support the Government’s assessment of the reasonableness of your proposed price” and advising that the clarification requests do “not allow you to modify your proposal, including your proposed prices, in any way”); cf. FAR 15.306(d) (defining “negotiations” as exchanges “that are undertaken with the intent of allowing the offeror to revise its proposal” and defining “discussions” as negotiations that occur “after the establishment of the competitive range” in competitive acquisitions).

Nor does the court find that Entwistle revised its proposal as result of the two exchanges. As to the first exchange, although Entwistle may have provided the Agency with required information that was not included in its proposal, the court does not find that Entwistle revised its proposal because Entwistle did not change its total price and did not “change the terms of its proposal to make it more appealing to the government.” Cf. ITAC, 316 F.3d at 1322; id. (stating that the FAR “contemplates discussions as occurring the context of negotiations”). And, as to the second exchange, the court finds unpersuasive plaintiff’s conclusory statement that “the Agency gave Entwistle an opportunity to materially revise and update its proposal in narrative form,” see Pl.’s Mot. 20, when the additional information provided by Entwistle neither changed its total price nor changed “the terms of its proposal to make it more appealing to the government,” cf. ITAC, 316 F.3d at 1322.

Given the foregoing, the court finds reasonable the Agency’s interpretation of the two exchanges as clarifications, see AR 1848, 1853 (two requests for clarification) (characterizing the requests as clarifications), and therefore defers to the Agency’s view that the two exchanges were clarifications, cf. DynCorp, 76 Fed. Cl. at 542 (“[T]his court must give deference to an agency’s view that an [exchange] was a clarification, as long as that interpretation was permissible and reasonable.” (internal quotation marks omitted)).

Finally, defendant argues that “[e]ven if the agency’s exchanges with Entwistle had constituted discussions, . . . Mil-Mar has not demonstrated that it was prejudiced.” Def.’s Mot. 34; see id. (arguing that plaintiff has “made no effort to show--and indeed, cannot show--that the information obtained from Entwistle during the exchanges in question had any significant effect on the probability that the agency would award the Hippo contract to Entwistle”). Plaintiff counters that the alleged discussions “help[ed] make [Entwistle’s] proposal compliant with the RFP’s requirements,” Pl.’s Resp. 9, and argues that “[h]ad the Agency not entered into unequal discussions with Entwistle, it would have concluded that it could not adequately evaluate Entwistle’s significantly lower price for realism and would have rejected its offer,” Compl. ¶ 117; see Tr. 14:6-8, :16-17 (Ms. Duncombe) (arguing that the Agency sought “material information that was missing from the proposal” and that, “without this information[,] [Entwistle’s] proposal would have had to be found unacceptable”).

The court disagrees with plaintiff’s reading of the Solicitation and finds, notwithstanding plaintiff’s assertions to the contrary, that the two exchanges did not provide Entwistle with “an opportunity to take an otherwise unacceptable proposal and make it acceptable.” Cf. Pl.’s Resp. 9 n.3. Section L of the Solicitation did require certain information--including itemized material costs estimated at over $500 per part and proposed direct labor hours--to be included in Attachment 16 of an offeror’s Price Volume. See AR 265-66 (RFP) (stating that offerors “shall” provide this information in Attachment 16); supra Part I.A.1 (discussing Attachment 16). However, the Solicitation afforded the Agency several opportunities to exercise its discretion in accepting proposals that did not include required information. For example, the Solicitation provided that the Agency “may” reject proposals that “fail[] to provide any of the data and information required in Section L” or “omit[] significant material data and information required by Section L.” AR 276 (RFP). And, although the Solicitation stated that the Agency would award a contract only to an offeror that submitted a proposal that “[met] all the material requirements of [the] solicitation,” id. at 277, the Agency determined that the omitted requirements were not material, see AR 1785 (Entwistle PER) (stating that the information that Entwistle omitted from its Attachment 16 “was not significantly material to reject [Entwistle’s] proposal”), and the court defers to the Agency’s discretion in making that determination, cf. Allied Tech., 94 Fed. Cl. at 40 (“[T]he Court only will overturn an agency’s determination that an offeror’s proposal failed to satisfy the material requirements of the solicitation if such a finding was arbitrary and capricious.”). Moreover, as to plaintiff’s argument that, but for the improper discussions, the Agency would have rejected Entwistle’s proposal because “it could not adequately evaluate Entwistle’s significantly lower price for realism,” Compl. ¶ 117, the Solicitation also provided that the Agency “may reject a proposal which is not realistic . . . as to price”; the Solicitaiton did not state that the Agency was required to do so, AR 278 (RFP); see also id. at 276 (stating that the government “may” reject a proposal that “is unrealistically . . . low in price”); cf. infra Part III.D (discussing the Agency’s price realism analysis).34 Given the foregoing, the court finds that plaintiff has failed to show that, but for the alleged improper discussions, plaintiff had “a substantial chance it would have been awarded the contract,” and that, therefore, plaintiff has failed to show substantial prejudice. Cf. Brooks Range, 101 Fed. Cl. at 707 (internal quotation marks omitted).  (Mil-Mar Century Corp. v. U. S. and The Entwistle Company, No. 13-131C, June 12, 2003)  (pdf)

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

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

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

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

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

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

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

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

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

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

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

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

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

B.  The Disqualification of Allied’s Proposal1.

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

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

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

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

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

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

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

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

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

The relevant provision of the Draft RFQ read:

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

In response, Allied stated:

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

The DOJ then added the following:

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

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

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

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

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

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

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