We have a RFP (best value)we have had opened and closed negotiations on, and received Final Proposal Revisions. We are a day or two away from making award. Last night we received a call from the low priced offeror - who is way too low, saying that he made a mistake in his offer. I do not think we are required to re-open negotiations. My boss disagrees. Is there any case law or regs I can use to support my opinion?

Quick responses are appreciated as we are trying to award this today. (I have to post as Anon in this case, but I am a semi-regular contributer to the board - any help is GREATLY appreciated.)

THANKS!!!!

By Anonymous on Thursday, December 20, 2001 - 09:09 am:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=gao_comptroller_general&docid=f:283794.txt

By Mike Wolff on Thursday, December 20, 2001 - 09:19 am:

Thanks Anon 9:09. If anyone else has anything else, please let me know. The case in Anon's link addresses the issue that it is possible to correct a clerical error without negotiations, but I don't think it is similar enough to my case to strongly support my position.

Mike

By Anonymous on Thursday, December 20, 2001 - 09:42 am:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=gao_comptroller_general&docid=f:2706322.txt


http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=gao_comptroller_general&docid=f:278168.txt

By Vern Edwards on Thursday, December 20, 2001 - 10:00 am:

Mike:

The answer depends in part on what kind of mistake you're dealing with.

The rules in FAR Part 15 about how to handle pre-award mistakes other than minor or clerical mistakes are a little obscure, the only guidance being in 15.306(b)(3)(i), which refers you to FAR 14.407. There have been few protest decisions concerning mistakes since the FAR Part 15 Rewrite took effect and as far as I know they have all been about clerical-type mistakes.

Minor or Clerical Mistakes

FAR 15.306(a)(2) says that you can allow an offeror to correct "minor" and clerical mistakes through clarifications. Thus, if the mistake is minor or clerical, you do not need to conduct discussions in order to let the offeror correct. If you refuse to allow the offeror to correct a minor or clerical mistake the GAO or the Court of Federal Claims might say that you abused your discretion.

Other Mistakes

The problem arises when the mistake is more than minor or clerical. What does that mean? Based on old regulations and case law, it means that either the claimed mistake or the proposal actually intended cannot be determined by looking at the RFP and the proposal itself.

Here is what I think the rules are today:

(1) If the mistake is an apparent clerical mistake, you can correct it as a matter of clarification, rather than discussion.

(2) If both the mistake and the proposal actually intended can be determined on the basis of the proposal itself and the RFP, without reference to the offeror's workpapers, then you can let the offeror correct it through clarification, rather than discussion.

(3) If you need to refer to the offeror's workpapers in order to verify either that there was a mistake or what the offeror actually intended to propose, and if you want to let the offeror try to convince you that it has made a mistake, then you can do so only through discussions. But you are not required to conduct discussions in order to let an offeror try to convince you. If you don't want to conduct discussions you can give the offeror the option of either withdrawing its proposal or standing by it as submitted.

I'm very confident about (1) and (2), but not so confident about (3). To the best of my knowledge, there has been no protest about (3) since the FAR Part 15 Rewrite took effect. If you have a (3)-type situation and decide not to let the offeror correct the mistake because you didn't want to reopen discussions, and if the offeror protests, I'm pretty confident that the GAO will support your decision and deny the protest. The GAO considers discussions optional and doesn't like to force agencies to conduct them for the benefit of offerors. The risk comes if you decide to let the offeror correct a (3)-type mistake without reopening discussions with the other offerors. It's possible that the GAO would say that the correction constituted discussions.

There is a theory that correction of any mistake is a proposal modification rather than a proposal revision and thus does not constitute discussion. See the definitions in FAR 15.001. However, as far as I know that theory has not been tested before the GAO.

By Mike Wolff on Thursday, December 20, 2001 - 10:10 am:

Thanks to all.

Mike

By anon32 on Thursday, December 20, 2001 - 11:53 am:

The offeror can withdraw its proposal anytime before you award. It doesn't look like that is probable here.