Agency: Department of the Air Force
Disposition: Protest Denied
Decided: July 23, 2020
Keywords: Clarifications; Discussions
General Counsel P.C. Highlight:
Clarifications cannot be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. An agency’s discretion to hold discussions or engage in clarifications is quite broad and is not generally reviewed by GAO.
Summary of Facts
SigNet Technologies, Inc. protests the award of multiple contracts under RFP No. FA8730-19-R-0005, issued by the Department of the Air Force. The RFP was issued on June 6, 2019, for contractors to implement physical and electronic security systems to protect Air Force sites, known as the Force Protection Site Security System Solutions (FPS4) program. The RFP contemplated the award of multiple indefinite-delivery, indefinite-quantity (IDIQ) contracts with a 5-year ordering period. Award would be made to all offerors that submit a technically acceptable proposal and offer a fair and reasonable price. The RFP also stated that the
government intended to evaluate proposals and make award without discussions, but
reserved the right to engage in clarifications. The only evaluation factor specified in the RFP was the technical factor, which had four subfactors, including the infrastructure subfactor. A proposal would be deemed technically acceptable if every technical subfactor were rated acceptable quality and low or moderate risk and would be rated based on the agency’s assessment of weaknesses, significant weaknesses, and deficiencies in each offeror’s technical proposal.
By the closing date, the agency received 31 proposals. SigNet’s proposal was rated as unacceptable quality and high risk, and the Air Force assessed a deficiency to the communication networking element based on a combination of significant weaknesses. The agency did not conduct discussions or engage in clarifications with SigNet on its proposal. Since SigNet’s proposal did not receive a rating of acceptable quality and low or moderate risk for all technical subfactors, SigNet was not considered a qualifying offeror and was not awarded the contract. After requesting and receiving a debriefing, SigNet filed this protest.
Basis of Protest
SigNet argues the Air Force should have sought clarification on various flaws identified in its proposal, which SigNet contends were minor or clerical. SigNet further argues that if the Air Force sought these clarifications, it would have become a qualifying offeror eligible for award of the contract. The Air Force argues that it was not required to engage in clarifications and that the technical evaluation highlighted significant weaknesses that would have required resolution through discussions, rather than clarifications.
GAO explained the difference between discussions and clarifications, which is at issue here. “Discussions occur when an agency communicates with an offeror for the purpose of
obtaining information essential to determine the acceptability of a proposal, or provides
the offeror with an opportunity to revise or modify its proposal in some material respect.”
Clarifications are “limited exchanges between the agency and offerors that may occur
when contract award without discussions is contemplated.” GAO noted that an agency “may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain
aspects of proposals or to resolve minor or clerical errors.” Moreover, offerors have no automatic right to clarifications, and agencies have broad discretion as to whether to seek clarifications from offerors. Finally, clarifications “cannot be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.”
GAO determined that clarifications were not appropriate to resolve the flaws identified in SigNet’s proposal. For SigNet’s proposal to become acceptable, it would need to provide “a substantial amount of required information missing from its proposal” to remedy its insufficient documentation. GAO concluded that “providing SigNet with an opportunity to correct the significant weaknesses that formed the basis of the deficiency would constitute discussions, not clarifications, because it would involve the submission of information necessary to make the proposal acceptable.”
GAO also noted that the RFP advised that the Air Force reserved the right to make award without discussions, and an agency is not required to provide an opportunity for discussions, or clarifications, where the solicitation expressly advised that the agency intended to make award without discussions. Lastly, GAO noted that an agency’s discretion to hold discussions or engage in clarifications is broad and not generally reviewed by GAO.
GAO denied the protest on this basis.