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“To see what is in front of one’s nose needs a constant struggle” — George Orwell

Contractor’s appeal from a denied claim is sustained. The contractor was hired to translate technical manuals for the agency. The tasks in the translated manuals implicated tasks in other manuals. The contractor stated in it proposal that its translation would reference the tasks in the other manuals but not incorporate those tasks into the translations. The agency, however, did not bother to read to the proposal before awarding the contract. The agency then (1) ignored the contractor’s reference-only approach in a slideshow, (2) ignored the reference approach in sample manuals provided during performance, and (3) failed to address concerns it had about the contractor’s very low price. It was only after the contractor had completed much of the work that the agency realized it did not want mere references. Given the agency’s disregard for the contractor’s technical approach, the board determined the it was liable for the increased costs of incorporating the tasks from other manuals.

The Army supplies Afghan military forces with M-117 Armored Security Vehicles. Maintenance for the M-117 is divided into four levels: 10, 20, 30, and 40. Levels 10 and 20 involve simple maintenance that can be performed by a vehicle operator or unit. Levels 30 and 40 involve more complex depot-level refurbishing and overhaul.

The Army provided Afghan forces with Level 10 and 20 manuals that were translated into Dari and Pashtu. The Army wanted to obtain translated copies of Level 30 and 40 manuals.

The Army issued a solicitation for translated Level 30 and 40 manuals. CLI Solutions submitted a proposal. The Level 30 and 40 manuals included tasks from the Level 10 and 20 manuals. Rather than include the Level 10 and 20 tasks in the Level 30 and 40 manuals, CLI proposed to simply reference the Level 10 and 20 tasks.

But the Army did not really read CLI’s proposal. It made no attempt to evaluate CLI’s approach other than to consider a sample translation. The remainder of information in CLI’s proposal was considered irrelevant. The Army found CLI’s proposal technically acceptable. Based on its extremely low price, CLI was awarded the contract.

Although it had awarded the contract to CLI, the Army was concerned about CLI’s price, which was drastically lower than the government estimate. Indeed, the contracting officer was so concerned that he attended CLI’s start of work meeting to ensure that CLI understood the scope of work. During that meeting, CLI presented slides showing its manual development process. The slides described how CLI planned to reference anything in the Level 10 and 20 manuals. The contracting officer did not object to this approach.

CLI began work on the contract. CLI provided the government with samples of the Level 30 manuals it had produced. In accordance with CLI’s plan, these manuals only referenced tasks in the Level 10 and 20 manuals. The Army had comments on the presentation of data and literacy level of the translation but said nothing about the references to Level 10 and 20 manuals.

CLI completed work on the Level 30 manuals and turned to the Level 40 manuals. After CLI provided its first samples of the Level 40 manuals, however, the Army, for the first time, indicated that the manuals could not contain references to the Level 10 and 20 manuals.

CLI redid all the manuals, removing the references to the Level 10 and 20 manuals and actually setting forth the Level 10 and 20 tasks. CLI then submitted a claim to the Army for $962,000 for the increased scope of work. The Army denied the claim, and CLI appealed to the ASBCA.

On appeal, the Army argued that the contract inherently incorporated the Level 10 and 20 tasks into the scope of the work. The Army reasoned that someone performing repairs on an M-117 cannot do Level 30 or 40 tasks without first accomplishing Level 10 and 20 tasks. Thus, CLI should have understood that the Level 10 and 20 tasks needed to be set forth in the Level 30 and 40 manuals.

The board noted that it may be true that Level 10 and 20 tasks must be performed before Level 30 and 40 tasks, but the plain language of the contract only obligated CLI to produce Level 30 and 40 manuals. The Level 10 and 20 tasks were not mentioned in the scope of work. Indeed there was nothing in the contract that precluded the approach taken by CLI.

What’s more, the Army appeared to approve CLI’s approach along every step of the way. The government accepted the reference-only procedure in CLI’s proposal. It failed to question that approach after receiving three sets of samples. It ignored information about the references to the Level 10 and 20 manuals at the start of work meeting.

The Army argued that CLI’s appeal had be denied because the company failed to inquire about the meaning of the term “for reference” in the solicitation prior to bidding. But the board found this argument misdirected. The facts did not present a question of CLI’s duty to inquire. Rather, the Army’s identification of this alleged ambiguity was a post-hoc rationalization of its failure to evaluate CLI’s proposal.

The board also noted that the Army had reason to be concerned with CLI’s approach given its very low price. Notwithstanding, the Army did not notify CLI about these concerns. Instead, it ignored every indicator that CLI did not possess the same understanding about the manuals. Given the Army’s careless disregard for CLI’s approach, the board refused to find that CLI was responsible for costs of the Army’s mid-performance reformation of the statement of work.

CLI is represented by Eric Whytsell and Rodney W. Stieger of Stinson LLP as well as Scott R. Williamson of Williamson Law Group LLC. The government is represented by Scott N. Flesch and Major Ronald M. Herrmann of the Army.