Protests challenging the agency’s decision not to seek clarifications or hold discussions are denied, where neither protester demonstrated the material omissions in their proposals could be cured with clarifications and where the agency reasonably decided not to open discussions with up to 80 offerors in light of the small potential benefit of adding one more proposal to the competition. In the first protest, the court found the agency was not required to ask the protester to submit documentation of an approved cost accounting system for one of its JV partners, because there was no indication in the proposal that it intended to do so, and therefore the error was not apparent. In the second case, the protester failed to show the agency had received its full proposal submission, and the court found the lack of an actual proposal to be a material omission that could not be cured by clarifications.
In separate, but consolidated, bid protests, RX Joint Venture LLC and TISTA Science and Technology Corporation argued the General Services Administration improperly evaluated their proposals for an IT services contract. Both argued the CO improperly failed to contact them regarding information missing from their proposals. TISTA argued that GSA lost the documents the CO asserted were not submitted.
The solicitation required offerors to demonstrate they had a cost accounting system certified by a cognizant federal agency. For joint ventures, this certification could be submitted on behalf of the JV itself. Otherwise, each JV member had to submit a certification. In its proposal RXJV claimed points for having a certified CAS. However, the proposal contained documentation and certifying statements for JV member Rothe Development Inc. but not for partner X Technologies. Accordingly, the CO deducted points from RXJV’s self-score. The CO did not seek clarification from RXJV or ask for the information. After award decisions were announced, RXJV was informed that it had failed to submit evidence of X Technologies’ approved CAS. When the protester offered to submit this documentation, the CO declined to consider it.
The agency also received a proposal package from TISTA. However, the package contained only the scoring worksheet and a submission of subcontractor information. GSA asserted that it never received an actual proposal and therefore had removed TISTA from the competition. After the award decisions were announced, TISTA was informed that its proposal was never received. The CO explained that correcting this omission would have required the agency to open discussions. However, the agency never held discussions and TISTA was never informed that its proposal had not been received.
Both offerors protested and their cases were consolidated. Both sought a declaration that the CO’s failure to seek clarifications was improper, an injunction setting aside the awards and ordering a reevaluation of the corrected proposals, and attorneys’ fees.
The court first considered RXJV’s protest, noting that a key factor in considering 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. However, the court found the protester failed to show that the CO had any reason to suspect that RXJV inadvertently omitted the missing documents from its proposal. In its proposal, RXJV made no reference to those documents, and in fact listed only Rothe’s CAS materials in the table of contents.
While the protester argued the error was apparent, because the relevant experience portion of its proposal stated that X Technologies was currently performing cost-reimbursement contracts, which require a CAS, the court was unpersuaded. The court noted the CO did not evaluate this portion of RXJV’s proposal once he concluded the protester did not have enough points to be eligible for award. Further, the CO was not obligated to hunt through the proposal in search of information that might lead the CO to believe that seeking clarification was warranted.
Next, the court considered TISTA’s challenge, in which it argued the agency lost its proposal. While the protester submitted affidavits from multiple executives that the proposal was included in the proposal package, GSA argued that TISTA had not rebutted the presumption of regularity that applies to the government’s processing of proposals. GSA noted that the CO was certain the proposal was not received and that TISTA provided inconsistent explanations regarding the contents of the package.
The court found GSA’s explanation of its process for receiving proposals to be credible. The agency attested that the CO stored the package in a locked space, opened the package to review the scoring worksheet, and documented the contents of the package after discovering the proposal DVD was not included. Given these circumstances, the court placed the burden on TISTA to show an irregularity, and found it had failed to do so. While the CO told TISTA that he did not notify the company that it was being removed from competition because TISTA’s proposal DVD might be found in GSA’s possession, the court found that the CO merely acknowledged a hypothetical situation. The CO was not stating his belief that the proposal had been lost. The CO also thought that TISTA’s intent to submit a proposal could be realized if discussions were held.
The court also found TISTA’s uncorroborated affidavits insufficient. While the protester submitted a tracking manifest, the court noted the document stated only that a package was received by the government, without attesting to its contents.
TISTA next argued that the DVD containing its proposal went missing due to GSA’s poor job safeguarding proposals. TISTA argued GSA provided no explanation of its safety procedures in the debriefing and that the CO’s explanation was insufficient. TISTA also noted the undisputed fact that GSA timely received its package. Third, TISTA argued that the loss of the DVD is more than an isolated incident of negligence because the CO opened the proposal box, discarded packing materials, left the package on a shelf, and returned later to inventory the contents of the box.
However, the court found this argument unconvincing. According to the court, to prevail, TISTA must show that (1) the government failed to explain what safeguarding procedures were in place, (2) the evidence suggests that the proposal was received by the government, and (3) the government’s negligent loss of information was not an isolated incident. The court found that TISTA failed to meet the first and third prongs of the test, noting the government did explain its procedures and that TISTA provided no evidence of a systemic failure.
Next, TISTA argued that the government-control exception applies, because there is acceptable evidence that the proposal was received by GSA and was under its control prior to the time set for receipt of proposals. In support, TISTA relied again on the affidavits of its executives and its tracking record for the package. TISTA also asserted that the purpose of the government-control requirement is to prevent modification of proposals after submission and that this objective is satisfied by the stipulated fact that, during its GAO protest, TISTA submitted a complete proposal with metadata reflecting that no changes were made after the deadline for submitting a proposal. However, the court was again unpersuaded, finding that the government-control exception cannot be applied because TISTA failed to show that its proposal was actually received.
Finally, TISTA argued that the agency improperly declined to seek clarifications or open discussions. First, TISTA argued the missing information could have been redressed via clarifications because a clarification would not have materially altered the terms of its proposal and because the mistake was apparent. GSA argued the failure to submit the DVD proposal was a material omission that was not a proper subject for clarifications.
The court agreed with the agency, explaining that a material omission cannot be cured by clarifications. The court found it difficult to fathom how anything could be more material than the omission of the actual proposal submission. While TISTA argued the CO could evaluate the proposal based on the scoring worksheet, the court found this review to be only the first step in a lengthy process. In fact, the CO was required to review the contents of the proposals at every subsequent step of the evaluation process.
TISTA argued that the submission of its proposal documents would not have been a substantial revision, because it could show when the documents were created and last revised. However, the court found this argument beyond the limited nature of clarifications. Under TISTA’s theory, even the most fundamental aspects of a proposal would always be subject to clarification so long as the offeror showed what it intended to submit.
Finally, TISTA challenged the agency’s decision not to hold discussions. GSA argued it had no obligation to open discussions. The court deferred to the agency’s discretion, noting that the solicitation stated that awards could be made without discussions. The court noted that the CO was presented with the choice to reject TISTA’s incomplete submission or to open discussions with as many as 80 offerors. Given the time and resources required, and the small potential benefit of adding one additional proposal to the competition, the CO reasonably decided to forgo discussions.
RX Joint Venture LLC is represented by David F. Barton. Tista Science and Technology Corporation is represented by Ryan S. Spiegel. The government is represented by Lauren S. Moore, Department of Justice.