ILLEGAL ACTION BUT NO REMEDY

Chief Judge of the Court of Federal Claims (COFC) Emily C. Hewitt has just issued an opinion that the government violated FAR 15.307(b); however, she denies relief to the contractor because it failed to show that but for the violation the contractor would have had a substantial chance to receive the award.

In an extensive and thorough discussion of the facts, Chief Judge Hewitt determined that the government violated the regulation by failing to properly establish a common cut-off date for the receipt of final proposal revisions (FPRs) and by failing to convey to the offerors that it intended to make award without obtaining further revisions.

So, this is a reminder that FAR 15.307(b) states:

The contracting officer may request or allow proposal revisions to clarify and document understandings reached during negotiations.  At the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final price revision.  The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions.  Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the Government intends to make award without obtaining further revisions.  

In this case, the contracting officer's post discussion letter was unclear in that it implied further negotiations might take place.  It also did not clearly state that a common cutoff date was established for receipt of FPRs.  The court therefore concluded that the government failed to issue a request for FPRs as required by the regulation.

But the contractor failed to establish that it was prejudiced by the government's violation of the regulation.  To succeed on a post award protest action, the contractor must show that if the government had properly followed the regulation, the contractor would have had a substantial chance of receiving the award.

On the facts, the court concluded that the contractor's prices would not have been competitive and it therefore would not have had a substantial chance to receive the award.  So the second lesson of the case is that a contractor really should not protest unless it can show it would have had a substantial chance of receiving the award but for the violation.  It may be illegal, but there's no remedy.

bill@spriggslawgroup.com      www.spriggslawgroup.com