The protester’s proposal appeared to contain a rather obvious clerical error—a couple of proposed labor rates that did not comply with a CBA. The agency rejected the proposal as noncompliant. The protester argued that this error could have been easily corrected if the agency had sought clarification. But the court found that the labor rates were a material solicitation term and thus could not be corrected through clarifications. The agency could have corrected the error through discussions , but the agency had discretion in deciding whether to conduct discussions.
The Bionetics Corporation v. United States, COFC No. 22-120
Background
The Air Force issued an RFP seeking items and services necessary to perform a ground equipment project. The RFP required contractors to pay service employees wages set by a collective bargaining agreement (CBA). The RFP further provided that the Air Force could reject proposals that were incomplete.
The Bionetics Corporation submitted a proposal in response to the RFP. The Air Force rejected Bionetics’ proposal as incomplete because two of Bionetics’ wage rates did not match the rates of the CBA. Bionetics filed a protest with the Court of Federal Claims.
Legal Analysis
Bionetics’ Proposal Was Incomplete
Bionetics complained that the Air Force erred in finding its proposal incomplete. Bionetics argued that its proposal was in fact complete because it had filled in all the fields. But the court noted that the RFP stated that the Air Force would review the proposal for “completeness and compliance.” Thus, completeness of a proposal necessarily included compliance. Bionetics had submitted labor rates that were not compliant and thus its proposal was incomplete.
Moreover, the court reasoned the CBA labor rate requirement was a material solicitation requirement. While Bionetics’ proposal had indicated that it would comply with the CBA, the conflict between this conclusory statement and the rates it actually proposed created ambiguity that precluded any reasonable certainty as to the material terms of a potential contract.
Air Force Wasn’t Required to Seek Clarification
Bionetics argued that the Air Force should have sought clarification for what was clearly a clerical error. But the court reasoned that clarifications cannot be used to cure a solicitation deficiency. Bionetics’ failed to comply with a material price term. The error could not be cured with clarifications. In any event, the RFP gave the Air Force discretion to conduct discussions or clarification; the agency was not required to seek corrective information from Bionetics.
RFP Didn’t Distinguish Between Rates Charged to the Agency and Rates Paid to Employees
Bionetcs attempted to argue that the RFP only required offerors to propose prices they would change the Air Force, not the rates they would pay employees. Bionetics claimed the Air Force erred in failing to recognize this disticition. Bionetics claimed that although it listed the different rates in its proposal, it actually planned to pay higher rates and thus take a loss. The court rejected this argument, noting the solicitation did not differentiate between charges and payment. There was a single spreadsheet for rates and no separate list for a second set of rates to be actually paid.
Bionetics is represented by Anthony J. Mazzeo and Michael L. Sterling of Vandeventer Black, LLP. The intervenor, Leo Tech, is represented by Jon Davidson Levinson, W. Brad English, and Emily J. Chancey of Maynard, Cooper & Gale, PC. The government is represented by Patrick Angulo, Douglas K. Mickle, Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice as well as Nicholas J. Illif Jr. of the Air Force.
