The agency rejected the protester’s final proposal revisions as late. The protester said the agency should’ve instead considered its initial revisions. But the protester was out of luck. Due to a solicitation amendment, the protester’s initial revisions were no longer compliant.
The Kace Company, LLC v. United States, COFC No. 23-387C
- Late Proposal Revision – Following an initial award, multiple protests, and corrective actions, the agency issued a solicitation amendment. The amendment required offerors to revise their proposals with additional information on corporate experience. The protester submitted its revised proposal two minutes after the deadline. The government refused to consider the late revision and made award to another offeror.
- Otherwise Successful Offeror Exception – The FAR states an agency may consider a late proposal if it’s a late modification of an otherwise successful offeror. The protester contended its initial proposal revisions had been an otherwise successful offer; indeed, the agency had initially selected the protester’s initial revisions for award. Thus , the protester reasoned, the agency should’ve treated its late final revision as a late modification of that acceptable offer. But the court found the protester’s previous revision was not an otherwise acceptable offer. The initial revisions may have been acceptable before the last amendment. But that amendment required additional experience information. The protester’s initial revisions didn’t include the information. The previous revisions were no longer an acceptable offer.
- Clarifications – The protester argued that instead of rejecting the initial revisions as non-compliant, the agency should have sought clarification for the missing information. But clarifications are only appropriate when an offeror has omitted information due to clerical error or a mistake. Here, it was clear the protester had not omitted the experience information from its initial revisions by mistake. Before the last amendment, the information had not been a requirement. The protester could not have omitted them by mistake. Clarifications were not warranted.
- Unstated Criteria – The protester alleged the agency applied unstated criteria when it disqualified the initial revisions for not adhering to the amendment’s instructions. The court was not persuaded. The protester had endeavored to comply with the amendment’s instructions when it submitted its final revisions. It was well aware of those instructions and could not claim they were unstated.
The protester is represented by Kevin T. Barnett, Isaias “Cy” Alba, IV, Katherine B. Burrows, Eric A. Valle, and Dozier L. Gardner, Jr. of PilieroMazza PLLC. The government is represented by Borislav Kushnir, Brian M. Boynton, Patricia M. McCarthy, and Douglas K. Mickle of the Department of Justice as well as Jessica Chen of the U.S. Secret Service.
--Case summary by Craig LaChance, Senior Editor
COFC - Kace Company