Joel:

Thanks.

I think there were some flaws in the contracting process on the Griffy case. However, we all make mistakes so I will not dwell on them.

We should take every advantage of the negotiation method of contracting that is available. The possibility of a sustained COFC, CG, or district court protest is minimal. With any luck, the district courts will not be involved much longer.

It is primarily up to the contracting officers to maintain the integrity of this process while serving the taxpayer.

Bob, an excellent summary.

I forgot to say that the other main point of the Griffy case concerns whether the Government has a reasonable responsibility to seek clarification of obvious errors in a proposal, under Part 15, competitively negotiated procurement.

That seems to be the point that folks are concerned about, here. The Court intermingles Part 14 procedures and duties in imparting such a duty under a Part 15 negotiated procurement. The Court basically said that the Government appeared to negate the public purpose of negotiated procurement, to allow bargaining and inquiry to obtain the best deal for the taxpayers.

In that sense, the Court may have expanded the "required" responsibility of the CO to make a negotiated procurement a meaningful exercise. Is it required or optional to maximize the benfits of negotiated procurement? Happy Sails!

By joel hoffman on Tuesday, June 6, 2000 - 09:33 am:

In Griffy, the question was whether communicating with the offeror was considered "discussions" or a simple clarification of an obvious omission.

In my opinion, the Court, after learning what the missing information consisted of, and after considering that there was a significant price difference between Griffy and the awardee's proposal, properly determined that the Government could have made a simple inquiry to clarify the omission.

A safety "experience modification ratio" or "factor" is something all insured contractors have assigned by their insurers. The Government should have been aware whether Griffy, the incumbant, was insured. As a contract administrator, we normally have access to such information. It was easily obtainable and not something, in itself, that the offeror could "revise" to improve its proposal -other than the fact that it was missing from the proposal.

I have some experience in evaluating safety information. There is no way that I would conclude that an offeror's price reflects a lack of understanding of the scope of work because he didn't submit the factor. The factor has a direct bearing on the insurance rate - but the offeror obviously knew what his insurance rates were, in preparing its cost proposal. Plus, he was the incumbent - as the judge said, his crews could have been working outside of the CO's office window. He should have been very familiar with the scope of work.

I would agree with the Court, under these specific circumstances, that a clarification was in order, that such a simple inquiry did not constitute "discussions." In giving the CO the benefit of doubt, I'm guessing that the real reason they didn't want to communicate with Griffy was they didn't want Griffy to get the contract. Therefore, I don't see the Court drastically expanding the responsibility of the KO. It was a simple omission, easily obtainable, which couldn't "improve" the proposal - a clarification.

Happy Sails! Joel

By bob antonio on Tuesday, June 6, 2000 - 09:18 am:

Vern and Ramon:

Vern, I like your proposal because it is logical and consistent. I also think this case could have been decided in the same manner without the expansion of FAR 15.306(a)(2). I have added the sections from the FAR we are discussing for ease of use. Also, I have added some facts I think are pertinent from the Griffy case.

The example of "clarification" provided in FAR 15.306(a)(2) seems to be more significant than the "missing" EMF data in this case. So using the current FAR, it seems to fit within clarification. However, the term "may" provides for discretion on the part of the contracting officer. With that in mind, I think the Court could have looked at the contracting officer's decision not to seek clarification and decide whether it was reasonable. Using Griffy's initial score for past performance of 47.8, I would say that it was reasonable not to seek clarification. However after the agency protest, Griffy's score for past performance was raised to 73--quite a jump. That did not include any of the 20 points for the missing EMF data and that was worth 20 points. The Court said that 20 points would make Griffey's past performance score equivalent to that of the awardee. We also have Griffey with a 20 percent lower price than the awardee. Now we need to decide again whether the contracting officer's judgement not to have sought clarification under the FAR for the EMF was reasonable. In my opinion, the contracting officer's judgement not to seek clarification was flawed.

I think the Court could have stopped there and said no more. I am also troubled about the Court's switching from contract administration and contract formation issues and terminology. Like you Vern, I also am troubled about the comparison of sealed bidding with negotiation.
------------------

Facts from the case.

Requirement: tree trimming and right of way maintenance services

Solicitation issued: May 1999

Proposals received: Six

RFP closing date: July 1999

Contract awarded: September 20, 2000

Evaluation factors: Past performance and price; past performance has a maximum rating of 100 points and is slightly more important than price.

Past performance subfactor involved in issue: Experience modification factor (EMF). This rating is assigned by a bidder's general liability insurance carrier based on the bidder's safety record. Maximum score of 20 points.

Initial agency evaluation: Griffy received 47.8 points out of 100 for past performance. No points were given to Griffy for EMF because information from its "proposal" was missing. In the absence of a contact name and phone number for the insurance representative "on a single sheet of paper," Griffy received no points for EMF. It was disputed whether Griffy did or did not submit the required information and the Court did not decide this issue. Griffy's price was 20 percent lower that that of the awardee.

Agency protest: Griffey protested to the agency on the grounds of "its low score for similarity of work" (I assume it was another subfactor) and the 0 points for the EMF. The agency agreed with Griffy on the first count and raised its score from 47.8 to 73. However, the agency did not agree with Griffy on the EMF and continued to give them 0 points.

Griffey has performed 13 contracts at the base and the contracting officer was involved with four of them. Griffey has a current contract for landscape services.

------------------------

FAR excerpts

15.306 Exchanges with offerors after receipt of proposals.

(a) Clarifications and award without discussions. (1) Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.

(2) 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.

14.407 Mistakes in bids.

14.407-1 General.

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.

14.407-2 Apparent clerical mistakes.

(a) Any clerical mistake, apparent on its face in the bid, may be corrected by the contracting officer before award. The contracting officer first shall obtain from the bidder a verification of the bid intended. Examples of apparent mistakes are--

(1) Obvious misplacement of a decimal point;

(2) Obviously incorrect discounts (for example, 1 percent 10 days, 2 percent 20 days, 5 percent 30 days);

(3) Obvious reversal of the price f.o.b. destination and price f.o.b. origin; and

(4) Obvious mistake in designation of unit.

By Ramon Jackson on Monday, June 5, 2000 - 09:43 pm:

I just read the decision. It does indeed appear the judge elevated the verification level so that any sloppy or mistake ridden element must be elevated to equate with a duty to inquire about the addition mistake on cost that resulted in a bottom line $500K short of the sum of the numbers above.

Maybe a new standard criterion concerning accuracy and completeness of submissions would be fun.

Loss of clarity between proposal and offer causes trouble as you have pointed out repeatedly. Let me see. Will those equating the two say the real estate sales person opening the closet and pointing out its wonderful space and light equates with what is contractually promised? Sounds awfully close to opening our wonderful resume package and showing the light of our key personnel. One dies or moves to Alaska to become a hermit and we have BOC?

A real bug in the ointment seems to be a continual confusion between the binding promise and the displays intended to show that the promise is worthy of acceptance. When boiled down to essentials the promise is quite often that the offeror will comply with requirements at this price on this schedule while obeying the law. Much of the rest can almost be termed a courtship display to demonstrate they are more suited than others offering nearly exactly the same. It really gets "fun" when non-contract people in line elements begin "but they promised" when it turns out the closet isn't quite as spacious and bright as they might have thought.

By Vern Edwards on Monday, June 5, 2000 - 03:56 pm:

Ramon:

The Griffy decision is potentially worrisome with regard to the judge's expansive definition of "clerical error" and his position that the "duty of verification" applies to matters that do not bear on the prospective contractual rights and responsibilities of the parties.

In sealed bidding the duty of verification applies to "bids," i.e., to offers (promises) that would be binding upon acceptance. It does not apply to information bearing on an offeror's responsibility. See FAR 14.407-1. In Griffy, the judge applies that duty to matters that are not contractual in nature, i.e., to information bearing on an offeror's ability to perform. I think that the judge got himself confused when he equated award without discussions to sealed bidding.

Again we see the harm caused by the FAR Council's failure to make a clear distinction between offers and the other information in "proposals." The duty to verify rule in FAR Part 14 is based on a common law rule that is designed to prevent offerees from taking advantage of offerors' apparent mistakes. In Griffy, the missing information (about insurance references) was not part of the offer and would have had no bearing on the contractual rights and responsibilities of the parties.

The FAR Council could clear things up a little by (1) making it clear in FAR Part 15 that "proposal" means "offer" and does not include non-promisory information or by (2) explaining that proposals include both offers and other information but that the discussion rules apply only to the offers. Such clarity might have helped the Army's lawyers argue that the duty to verify rule should not be applied to the kind of information missing from Griffy's proposal.

Note, by the way, that the judge effectively ignored the FAR Council's position in FAR 15.306(a)(2) that contracting officers "may" be given the chance to clarify their proposals but do not have to be given such a chance. The GAO, too, has suggested that COs may, in fact, have a duty to seek clarification, the "may" in FAR 15.306(a)(2) notwithstanding.

If we have to take Griffy seriously with regard to its "clerical mistake" and "duty to verify" holdings (and I suppose that we must), then the judge may have placed a heavy burden indeed on contracting officers.

By Ramon on Monday, June 5, 2000 - 03:02 pm:

Vern, Bob:

In principle I'm very much for allowing clarifications (in Vern's sense) so that the government gets the best contract despite some clerical mistake. I can agree with the judge there.

I also have the other view. When pressed to obligate on schedule and trying to expedite the selection process I see no need for the government to factor in all sorts of time for offerors to correct screw-ups. In fact, it seems to be one of those things that could be indicative of future behavior. If under the press of time you mess up on this critical acquisition of business what can I expect you to do to my project when similarly pressed? By allowing fixes am I just improving an accident prone company to get on my job and have similar accidents?

If a company refers to section 3.2.1 in its proposal and I find 3.1, 3.3 with no 3.2 at all (actual case) is it incumbent on me to delay my selection while they fix the goof? According to this perhaps. While my program waits and perhaps money expires? Not if I can help it!

On the other hand, I think the buyer should have the chance to make that decision dependent on what was presented. If the rest of the proposal indicated my requirement for transportaion systems would be met by a usable new energy source of low cost and zero pollution I'd like the opportunity to decide in this case I'll let them add the missing paragraph giving an exact detail. I suspect our overly legalistic and adversarial acquisition system might not be fully supportive of what a private customer might deem routine: My money, my decision. Period.

Of course in an ideal world I'd have gotten my RFP on the street January 1 and everyone could come back from Thanksgiving and Christmas and worked with plenty of time. Unfortunately for companies my internal coordination delay becomes their "emergency" and we can even consider that part of the test.

With leisure, particularly in a complex technical problem, I like the idea of mutual proof reading and working to the best solution through clarifications and discussions. At other times, particularly for straightforward relatively routine acquisitions, I like what may be implied in the ruling: a sort of sealed bid on cost and other factors.

Company, this is more complex than low bid and other factors apply, but you have one shot. Make it good. Make it right. That is part of our test. If you can't put your application together on schedule, clearly, completely, and accurately we don't want you around to bother us over the next year or years. Of course I'd make this aspect of the selection clear in the solicitation.

Any problems with doing so in words to the effect that time and accuracy in response are essential, are considered to be indicative of future performance on a demanding schedule requiring low or zero defects and the selection will be made on the basis of completeness and accuracy of initial offerings period?

Ramon

PS: I wrote this before seeing your last two exchanges, but I don't see reason to change. There are cases where a bit of extra time to clarify and get the best start on a complex issue are worth weeks. There are others where the problem is simple, there are plenty of qualified candidates and it is a waste of time.

By Vern Edwards on Monday, June 5, 2000 - 02:42 pm:

Bob:

Here are a couple of speculative explanations for why the agency didn't want to conduct discussions:

1. The agency knew Griffy and didn't want to do business with the company.

2. The company's technical score was so low (47.9 out of 100 points) that the agency didn't think that it was worth talking to, its lower price notwithstanding.

3. The agency needed to obligate FY99 money before the end of September and feared that discussions would delay the award. (The contract was awarded on Sept. 20, 1999.)

It shouldn't have taken too much time to conduct discussions in a procurement for tree trimming and right of way maintenance. The agency just didn't want to do business with that outfit.

By bob antonio on Monday, June 5, 2000 - 02:23 pm:

Vern:

When I began reading the decision, I thought the Court had blundered. Then I noticed the hint of the "constructive knowledge" rule. After a bit, my impression was that this was a bid protest decision written by a contract dispute judge. That is further supported by the cases the judge used for support of the phrase "duty to inquire"--44 Fed. Cl. 737 (1999) and 7 Cl. Ct. 423 (1985). They are contract dispute cases. In fact, the use of "duty to inquire" is nearly synonomous with patent defects--often a contract dispute issue.

In looking at the FAR and some legal texts, we see the government protecting the competitive procurement process from possible corruption by a bidder. My viewpoint in looking at the pre-award procurement process often is in protecting the integrity of the process. Do we miss the obvious with a strict focus from that viewpoint?

If we set the "clerical mistake" issue aside, we still have the "why didn't they conduct discussions issue." Was it to save a week in the contract award process? With a 20 percent price difference, there seems to have been room for some discussions.

By Vern Edwards on Monday, June 5, 2000 - 01:19 pm:

Bob:

I agree with you that the quote you cite from the Court is significant. But Griffy is interesting for several reasons.

First, there is the judge's expansive idea of what constitutes a "clerical mistake." He appears to think that if an RFP expressly asks for information and the government finds the information to be missing from a proposal without any indication that the offeror intended to omit it, then that suggests a clerical mistake and triggers the requirement to inquire.

Second, the judge equated award without discussions in a negotiated procurement to sealed bidding:

"The solicitation at issue was labeled a 'negotiated' procurement, but in fact bidders were advised that there would be no negotiations or discussions. In character it was the same as a sealed bid procurement where there are no post-submission contacts with bidders. But even in the sealed bid procurement framework an exception to the no-contact rule is recognized for clarification of overt errors[.]"

Third, there is the distinction that the judge makes between clarifications and discussions. He clearly understands that discussion is negotiation and that negotiation is "bargaining" but that clarification is not:

"At oral argument the Army also implied that if it sought to clarify the omission with Griffy, it would have to hold discussions with all bidders. this confuses the concepts of discussions and clarifications... The type of discussion the solicitation refers to and which might require dialogue with all the bidders is a different aspect of negotiated procurement, bargaining... ."

Of course, this line of thinking opens another: that people "bargain" about promises, not assertions of fact or opinion. They might argue about fact and opinion, but they don't bargain about them. In that regard it may be noteworthy that in the cases cited by the Army in defense of its claim that requesting the information would have constituted discussions--Charleston Marine Containers, Inc., B283393, Nov. 8, 1999 and Dylantic, Inc., B-261886, Oct. 30, 1995--the missing information had concerned the offerors' promises (about product design and about key whether key personnel satisfied SOW technical qualification requirments). The judge said, "There is a world of difference between material deficiencies and a lost name and number."

However, it would be unwise to read too much into Griffy. These discussion decisions are all over the map. What is clear is that among the FAR Council, the GAO, and the Court of Federal Claims, we cannot get a straightforward statement of the meanings of key terms. After all these years, there is still considerable uncertainty among all those lawyers about the distinction between clarifications and discussions.

Well, let this non-lawyer suggest a way to eliminate the uncertainty: Define discussions as: negotiations designed to persuade or allow an offeror to change its offer (i.e., promises); and define clarifications as: exchanges designed to resolve suspected mistakes in offers or to obtain information about an offeror's ability to perform the prospective contract. Then restore to FAR Part 15 the language that used to appear in FAR 15.607, which said that if an offeror had to refer to evidence extrinsic to its proposal as submitted to prove either (a) the existence of a mistake or (b) the offer that it had actually intended to submit, then the government would have to conduct discussions in order to allow the offeror to correct the mistake. (This would eliminate the confusion, but I wouldn't object to a more liberal policy about correcting mistakes.)

By bob antonio on Monday, June 5, 2000 - 12:19 pm:

Vern:

I have read the Griffy case several times. I think the issue is presented in two sentences of the case. That is:

"The policy is designed to prevent the government from overreaching by awarding a contract where it knows the contractor has made a significant mistake. Ruggiero v. United States, 190 Ct.Cl. 327, 335 (1970). The inverse is also important -- the government should not be deprived of the best possible contract because of a contractor's clerical error."

The question Bob asked seems quite similar to me, if not the same, as that in the Griffy case.

I went back to the Nash and Cibinic "Twin Blues" yesterday and in one of the microprint sections it shows that similar language existed in the Federal Procurement Regulation and either the Defense Acquisition Regulation of the Armed Services Procurement Regulation.

By bo antonio on Monday, June 5, 2000 - 11:48 am:

Vern:

The Griffy case is now online.

http://www.wifcon.com/courtdedinquire.htm

By Ramon Jackson on Monday, June 5, 2000 - 11:18 am:

Bob,

Perhaps it is just the wording, but I hope you aren't going entirely on self evaluations. As Vern said, you don't have to -- should not, in my view -- rely on the company's view of their past performance.

They provide references and you check or else this is a form over function exercise. That does not mean I think they should not be given a chance to self evaluate or explain known poor evaluations that will be revealed by the references.

As I said years ago, I think PP is predictive and as important in preping for the winner as evaluation. I'd be quite interested in "On contract xyz we failed to meet schedule. This taught us an important lesson and we have taken these actions to prevent another incident." I also said I'd rather have someone who bore some scars of journey through the dangerous lands than a fresh faced "no problems" type -- as long as they demonstrated they'd learned from experience.

Past performance should tell you something, you should learn something from examining and thinking about how it relates to your particular acquisition. If it is just a box checking scoring exercise I think it is largely a waste of time.

By Vern Edwards on Monday, June 5, 2000 - 10:48 am:

Bob:

The answer to your first question depends on whether or not you know or are able to obtain any information about the offeror's past performance through your own investigations, irrespective of whether or not it provided that information to you as requested.

In evaluating offerors' past performance you are not limited to the information that they provide. Thus, if you know about the offeror's past performance or if by checking around you are able to obtain some information about the offeror's past performance on your own, then you should not give that offeror a "neutral" rating.

Supposing that you don't know about anything about the offeror and that your investigation doesn't turn up anything, then the question is whether or not you can ask the offeror to submit the missing information. The answer depends on whether you are going to award without discussions or establish a competitive range and conduct discussions.

If you are going to award without discussions, then the question is whether or not letting the offeror provide the missing past performance information would be "clarification" or "discussion." My own inclination would be to argue that it's clarification, not discussion, because the information is not part of the offer and would not affect the terms of the prospective contract, but I'm sure that many persons would consider it correction of a "material omission" and that as such it would be discussion, not clarification. The rules about clarification are not all that clear and so I'm not sure how the GAO would decide the issue, but I'm inclined to think that the GAO would say that letting the offeror provide information that had been requested in the RFP but omitted from the proposal would constitute discussions.

However, the U.S. Court of Federal Claims has indicated that the failure to submit information that was requested in an RFP might be a mistake and that when planning to award without discusions COs should handle such incidents as clarifications, not discussions, in accordance with FAR 15.306(a)(2) and the mistake rules in FAR Part 14. See Griffy's Landscape Maintenance LLC v. United States, Fed. Cl. No. 99-999C, March 2, 2000, reported in Federal Contracts Report on March 28, 2000. The court considered an offeror's failure to insurance references as requested in the RFP to be an obvious clerical mistake. The court sustained a protest because the Army didn't give the offeror a chance to submit the missing material, thinking that to do so would have been discussions.

If you are going to conduct discussions, then the question is how the offeror's omission affects its chances of being included in the competitive range. FAR 15.306(b)(2) prohibits the use of "communications" to cure material omissions in a proposal. Thus, the question is whether the omission of the information is a material omission. I would say not, because it does not affect the terms of the prospective contract, but I suspect that the GAO would not agree with me. I don't know for sure. However, the Court of Federal Claim's logic might apply.

If you decide that FAR 15.306(b)(2) prohibits you from letting the offeror submit the missing information and you have no other information about its past performance, then you should rate the offeror "neutral" and see how that affects its inclusion or exclusion. If the offeror makes the competitive range you can let it supply the missing information during discussions.

I would discourage you from eliminating the offeror without evaluation merely because it had failed to submit the information. You might be able to get away with it, but it's a riskier strategy than giving the offeror a "neutral" rating.

Melissa Rider, who is on the staff at the DAR Council and who is one of the authors of the FAR Part 15 Rewrite occasionally participates in this forum, and if she reads your question she may be willing to share her personal opinion about whether letting the offeror supply the missing past performance information would be clarification or discussion.

Okay, thanks. To go further, if vendor "B", on a fixed price, commercial item aquisition, simply did not submit past performance data (not a current case, but we get this all the time), is he properly put in the neutral category, or do we:

a.) Screen him out for leaving out important evaluation information we asked him for.

b.) Go back and ask him for the past performance info we wanted in the first place (always a time consumer).

By Vern Edwards on Friday, June 2, 2000 - 12:46 pm:

Bob:

You could pick Vendor A over Vendor B even if Vendor B had a lower price than Vendor A and all other factors were equal.

By Scott P. Stermer on Friday, June 2, 2000 - 12:09 pm:

I agree...it looks fine.

Scott

By Eric Ottinger on Friday, June 2, 2000 - 12:01 pm:

Bob,

Sure. Excellent can beat neutral. There are Comp. Gen. cases to back this up, if you need them.

Eric

Excuse me, I meant vendor "B" versus vendor "A", not "C".

Please forgive me for going over something that has probably already been beaten to death.

If I am using past performance as an evaluation factor, can I use the following scheme and actually select vendor "A" over vendor "C" because of the position of vendor "A" in the scheme. (with all other factors being equal):

+++ Excellant, very low risk (Vendor A)
++ Very Good, low risk
+ Adequate, moderate risk
? Neutral, unknown risk (Vendor B)
- Marginal, moderate to high risk
-- Poor, high risk
--- Very Poor, very high risk