Missing JV Agreement Sinks Offeror’s Proposal

A small business joint venture’s proposal was excluded from the competition because the joint venture failed to submit a signed copy of its joint venture agreement, as required by the solicitation.

In a recent bid protest decision, the GAO held that the procuring agency acted properly in excluding the joint venture’s proposal, even though the joint venture’s price was more than $300,000 lower than the lowest-priced awardee’s.

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Federal Court Again Says Agency Erred By Not Clarifying Proposal Errors

A procuring agency erred by failing to seek clarification of obvious errors in an offeror’s proposal, according to a recent ruling by the U.S. Court of Federal Claims.

In Level 3 Communications, LLC v. United States, No. 16-829 (2016), the Court held that although a Contracting Officer has discretion over whether to seek clarification of a proposal, this discretion is not unlimited. By failing to clarify obvious errors, the Contracting Officer’s decision was arbitrary, capricious, and an abuse of discretion.

The decision builds on a 2013 case, BCPeabody Construction Services, Inc., No. 13-378C (2013), in which the Court reached a similar conclusion. But so far, the GAO has drawn a hard line, essentially holding that an agency’s discretion in this area is unlimited.

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Agency’s Discussions Only With Awardee Were Improper, Says GAO

When a procurement agency opens discussions with one offeror, it must open discussions with all offerors within the competitive range.

In a recent bid protest decision, the GAO held that a procuring agency conducted improper discussions when it limited discussions to only one offeror.

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Limitation On Subcontracting Information Was Permissible “Clarification,” Says GAO

A procuring agency did not engage in impermissible discussions by allowing a small business to verify its intent to comply with the applicable limitation on subcontracting.

In a recent bid protest decision, the GAO held that the information regarding the small business’s compliance with the subcontracting limits was a permissible “clarification,” and did not require the agency to open discussions with all offerors in the competitive range.

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Agency Erred By Not Clarifying Clerical Error, Says Federal Court

A procuring agency erred by failing to seek clarification of an obvious clerical error in a small business’s proposal, according to a recent ruling by the U.S. Court of Federal Claims.

In BCPeabody Construction Services, Inc., No. 13-378C (2013), the Court held that although procuring agencies have discretion as to whether to clarify clerical mistakes, that discretion is not unlimited–and that failing to clarify an obvious mistake may be an abuse of discretion.  It’s a ruling that should be cheered by small government contractors.

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