It is well understood that offerors must submit proposals that meet the procuring agency’s requirements, including any page limitations set by the solicitation. But what if an offeror’s proposal contains an obvious layout and printing error that inadvertently puts required information outside the established page limits? Does the agency have a duty to seek clarifications or allow corrections?
GAO says no.
Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal.
A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification for obvious proposal errors. But according to the court, there is a difference between an obvious proposal error and a calculated decision on the contractor’s part. This decision was about how to tell the difference.
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.
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.