GOVERNMENT'S DUTY TO INQUIRE

We've written often about the contractor's duty to inquire and seek clarification of solicitation ambiguities before submitting its bid.  The rule is clear.  If the solicitation is obviously unclear, the contractor has a duty to inquire and seek clarification of the ambiguous language or assume the risk of error.  A protest later will fail as untimely.  But what about the government?  Does the government have a duty to seek clarification of apparent mistakes in the contractor's offer in a negotiated procurement under FAR Part 15?  Yes, says the Court of Federal Claims in a recent opinion by Judge Charles Lettow.

Procurement officials have authority to act regarding clerical errors in sealed bidding and negotiated procurements.  Where sealed bidding is concerned, the rules regarding clerical and other mistakes in bids "are cast in mandatory terms," says Judge Lettow.  In contrast, the regulatory provisions regarding mistakes discovered before award in offers for negotiated procurements are "largely discretionary".  Judge Lettow cites the discretionary language in FAR 15.306(a)(2) permitting the contracting officer to provide the offeror an opportunity to "clarify certain aspects of proposals . . . or to resolve minor or clerical errors."  He does not mention FAR 15.306(b)(3)(i) which permits clarification and refers specifically to FAR 14.407 which recites the mandatory requirements.

Judge Lettow sees a fairly sharp dividing line between the rules in negotiated and sealed bidding procurements.  However, he says, "the permissive language of the clarification provisions in Part 15 does not mean that those provisions are not susceptible to judicial enforcement."

The protesting contractor mistakenly submitted the wrong information regarding the experience of one of its subcontractors.  The subcontractor was proposed by a competitor with the correct project experience information.  The government took the position it had no duty in inquire about the possible error by the protester.  The government rejected the protester's proposal as incomplete.

Interestingly, the court focused on whether competitive negotiation is so far removed from sealed bidding that a contracting officer's reaction to a clerical mistake can be "diametrically different" in the two types of procurement despite factually compelling reasons to seek clarification.

The court decides the government had the duty to inquire and grants relief to the contractor.  The contracting officer abused her discretion.  She "improperly refused to seek clarification . . . ."

The lesson here?  In negotiated procurements, contractors should attempt to correct mistakes or make clarifications in their proposals even where negotiations are not going to be conducted.  Clarifications are not negotiations.  Moreover, contractors should argue, in appropriate cases, that it would be an abuse of discretion not to allow the correction.  Their proposals should not be rejected.

bill@spriggsconsultingservices.com