Post-award protest is denied where (1) agency was not required to make a probable cost adjustment to correct an error in protester’s cost proposal, (2) the protester was not subject to disparate treatment, and (3) the agency was not required to seek clarification of protester’s proposal.
Mission1st Group Inc. bid on an IDIQ contract to provide the Army with services to support communications, intelligence, surveillance, and reconnaissance. The Army determined that Mission1st was ineligible for award because the formula the company used to calculate costs in its cost narrative did not match the formula used in its cost proposal. Mission1st initially challenged the ineligibility determination in a protest before GAO. After that protest was denied, Mission1st filed a protest with COFC. Both Mission1st and the government moved for judgment on the administrative record.
Although it conceded a discrepancy between its cost narrative and cost proposal, Mission1st contended that the Army should have resolved the discrepancy by performing a probable cost adjustment as required by FAR 15.404-1(d)(2). Mission1st argued that it should have been obvious that the discrepancy was due to an inadvertent error, and that the Army had all the information it needed to fix the error.
The court found this unpersuasive. The solicitation did not require the Army to perform a most probable cost adjustment. Rather, it stated that the government “may” adjust costs. The Army merely reserved the right to adjust costs; it did not obligate itself to do so.
Additionally, the court explained that a probable cost adjustment is not a vehicle for resolving uncertainties concerning an offeror’s intent. Here, the Army could not have been certain as to what Mission1st was proposing, and it could not verify the company’s proposed costs because of the discrepancy between the proposal and cost narrative. Contrary to Mission1st’s contention, it was not easy for the agency to infer what the company intended. The court reasoned that the Army could have viewed the discrepancy between the proposal and narrative as (1) an inadvertent error, or (2) a failure to modify the cost narrative after discussions.
Mission1st further argued that it should not have been found ineligible because the difference between the total cost in the proposal and the cost that could have been derived from the narrative was only two percent and thus immaterial. The court reasoned that a proposal error is material if it violates an express provision of the solicitation, and that provision serves a substantive purpose in the evaluation. The court found that Mission1st’s error violated the solicitation. Moreover, that error had a substantive effect on the evaluation because it prevented the agency from identifying cost elements in Mission1st’s proposal.
Mission1st also alleged that it was a victim of unequal treatment because the Army declined to adjust Mission1st’s prices, but it made cost adjustments to five other proposals. The court reviewed the five examples and found them inapposite. While those five proposals had discrepancies, they were easily resolved by simple arithmetic. Unlike Mission1st’s proposal, the Army did not have to guess at the subjective intent of the offerors.
Finally, Mission1st argued that instead of rejecting its proposal, the Army should have sought to resolve the discrepancy. The court reasoned that clarifications should not be used to cure proposal deficiencies. Here, the agency could not tell whether to use the formula from Mission1st’s cost proposal or from the cost narrative. This was a substantive flaw, not a clerical error that could be cleared up with clarifications. Indeed, the court noted that in the instances where the Army had sought clarifications, it had asked offerors to clarify typographical errors.
The court further noted that the decision not seek clarifications from Mission1st was supported by the posture of the procurement. The Army had only anticipated receiving 50 responses to the solicitation but had received hundreds. Given the level of competition, it was not necessary for the Army to allow Mission1st yet another opportunity to make itself eligible for award.
The court denied Mission1st’s motion for judgment on the administrative and granted the government’s cross motion.
Mission1st is represented by Justin A. Chiarodo, Adam Proujansky, and Stephanie Harden of Blank Rome LLP. The government is represented by Matthew Roche, Douglas K. Mickle, Robert E. Kirschman, Jr., and Joseph H. Hunt of the U.S. Department of Justice as well as Cathleen Higgins Perry of the U.S. Army Material Command Legal Center.