In two recent cases, disappointed contractors protested when agencies failed to request clarifications or open discussions. Both Defense Base Services and Level 3 argued that the issues with their proposals could have been remedied if given the chance. GAO denied both offerors’ protests. Yet when Level 3 persisted at the COFC, the judge concluded that an agency’s failure to request clarifications constituted an abuse of discretion. The cases illustrate the difference in the way GAO and the COFC view clarifications and discussions, and shed insight for offerors under similar circumstances.
Defense Base Services Heads to GAO
In the case of Defense Base Services (DBSI), the contractor protested at GAO when the Navy excluded them from phase 2 of a two-phase design-build competition for construction projects in Guam. DBSI felt that the agency had improperly evaluated its phase 1 proposal. In response, the Navy argued that DBSI had failed to include a legally binding teaming agreement in their proposal, a necessary component as specified in the RFP. DBSI conceded that their proposal was missing this critical piece, but felt that the Navy’s Contracting Officer should have asked for clarifications, which would have allowed them to remedy the defect.
GAO took the stance that clarifications were not appropriate for two reasons. First, clarifications were optional with the agency. Second, they were not appropriate here because the missing agreement was additional substantive information and not a mere clarification. The solicitation had warned offererors that proposals deemed unacceptable in terms of technical evaluation would be removed from the competition. So ultimately, GAO sided with the agency.