COFC Clarifies When Agency Must Seek Clarification

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.

In Telesis Corp. v. United States, 140 Fed. Cl. 765 (2018), the court reviewed a bid protest by Telesis Corporation of an award by the GSA under the Alliant 2 Small Business GWAC for information technology services. As part of the proposal, offerors had to provide a Scoring Worksheet to score their own proposals.

In particular, “offerors could claim points for having relevant experience” in certain technology categories and had to submit projects and could claim points for each qualifying project. In order to claim the points for a project, the proposal had to include

a completed relevant experience project template (“Experience Form”) signed by the cognizant contracting officer (“CO”) for each project. If offerors could not reach the CO, the GSA permitted the CO’s representative (“COR”) directly associated with the project to sign the Experience Form. Offerors who relied on the COR’s signature were also required to provide (1) the CO’s and COR’s contact information and (2) an electronic-mail (“e-mail”) message from the COR to the CO containing the completed Experience Form. The GSA requested the e-mail message to “provide verification that the CO was made aware of the COR’s concurrence with the [Experience Form].”

The evaluation had multiple steps. As part of that process, the agency “determines whether a support document substantiates each claimed point on the Scoring Worksheet.” The agency would also evaluate pricing and “the process would continue until the top eighty proposals (or more, in the case of a tie for the last spot) were identified, at which point evaluations cease and contracts would be awarded to the offerors of those proposals.” “Offerors were also informed that the GSA did not intend to hold discussions but would conduct clarifications as necessary.”

In its proposal, Telesis claimed it was entitled to a certain number of points for various qualifying projects. “For each of those projects, Telesis attempted to substantiate its points by submitting (1) an e-mail message from Telesis to the cognizant CO and COR requesting a signature on the attached Experience Form and (2) the form signed by the COR. But Telesis did not include an e-mail message from the applicable COR to the CO for any of the projects.”

In its evaluation, GSA deducted points because Telesis failed to substantiate “because it relied on the COR’s signature but did not provide the required e-mail message from the COR to the CO.”

Telesis then filed its bid protest with the court.

Telesis argues that its failure to include the requisite e-mail messages in its proposal was an apparent clerical error such that the GSA abused its discretion by not seeking clarification regarding the missing messages. Telesis asserts that this failure was a clerical error because the omission of the messages did not change the proposal’s substance—the substantive information sought by the GSA was contained on the signed Experience Forms, which were included in the proposal. Telesis further contends that the error was apparent because its intent to obtain the necessary documentation from the government was clear from the submission of the e-mail messages it sent to the CO and COR. Defendant counters that Telesis did not make an apparent clerical error because it failed to submit the correct materials for multiple projects. Defendant also argues that the missing e-mail messages were an essential part of the GSA’s verification process such that their omission was a material deficiency not subject to clarification.

The court reviewed the standard for when an agency must seek clarification based on whether it perceives something as an error versus a calculated decision. “Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” FAR 15.306(a)(1). ” Under the same FAR provision, “offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.”

Based on this provision, the court noted that “the GSA’s decision to seek (or not to seek) clarification is within its discretion.” But the court will evaluate the reasonableness of an agency’s decision. “A critical component of evaluating the GSA’s decision to not seek clarification is whether it should have discerned that the protestor made an error rather than a deliberate decision” based, in part, on the “the obviousness of the error.”

The court denied the protest because “Telesis does not direct the court to any record evidence before the GSA during the evaluation stage suggesting that Telesis’s submission of the e-mail messages it sent to the COs and CORs rather than the messages sent by the CORs to the COs was an apparent error rather than a deliberate choice.” The court relied on the fact that “Telesis relied on the COR’s signature seven times to substantiate the claimed relevant experience, and each time Telesis repeated the same error: submitting the wrong e-mail message. The repetition suggests a calculated decision.”

In addition, the court noted that including emails “that are relevant to (but insufficient for) substantiating the claimed points . . . is not so peculiar that the GSA was obligated to seek clarification.”

I interpret the court as saying, if you’re going to err, err in a spectacular manner. If you make a minor error, it’s possible the agency could think you were doing it deliberately. This comes down to a judgment call on whether an error was so “peculiar” and “obvious” that the agency should have noticed. In that type of situation, the court may sustain a bid protest, even if GAO would not.

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