Court cuts through fog of clarifications, discussions

Infotech & the law | Legal insights for today's market

Jonathan Cain

The wavering line between clarifications to proposals and discussions concerning proposals is one that frequently results in protests. This typically occurs when an unsuccessful offeror discovers that the awardee of a negotiated procurement was given an opportunity to supply additional information that the unsuccessful offeror was denied. Protest decisions in this area are far from consistent. The U.S. Court of Federal Claims issued a decision late last month that provides some guidance through this muddled and often misunderstood area of the selection process.

In this case, the protester was one of two offerors that submitted a proposal in response to an Air Force solicitation that stated the government intended to award a contract without discussions. It advised offerors to submit initial proposals that were fully acceptable without the need for further information. The government, however, reserved the right to hold discussions and negotiations for revised proposals if revisions were in the government's best interest.

By structuring the solicitation this way, the Air Force gave itself the flexibility to avoid one major source of protests: the establishment of a competitive range. If discussions are initiated with one offeror, then they must be undertaken with all offerors in the competitive range. A competitive range determination is required only if the government holds discussions.

On receipt of proposals, the Air Force decided that it would award without discussions, but it did decide to seek clarifications from the offeror that was later selected as the winner. No clarifications were sought from the protester. This decision set up the basis for the protest. The protester alleged that the government's clarification requests were discussions that resulted in the successful offeror revising its proposal ? an opportunity that the protester was denied.

Discussions are defined as exchanges between the government and offerors that are undertaken with the intent to allow offerors to revise their proposals.

Clarifications are defined as limited exchanges in which offerors are given the opportunity to clarify aspects of their proposals or to resolve minor or clerical errors. It is the precise nature of these clarifications ? and what constitutes a minor or clerical error ? that engenders protests.

The Air Force sought three clarifications of the awardee's technical proposal and three related to its price. The awardee submitted extensive comments that expanded the technical proposal on key points and supplied missing information in its price proposal. The court in this case gave three reasons that these so-called clarifications were indeed clarifications and not discussions.

The first, and least convincing, reason was that the Air Force labeled them clarifications when it sent them to the awardee. The Air Force did not specifically seek to have the awardee change its proposal and, under the theory that the court must give deference to an administrative agency in the interpretation of its own regulations if the interpretation is reasonable, the court concluded that the Air Force's clarification label had to be respected.

The second, not entirely convincing, reason was that the clarification requests were clarifications because the government had not opened discussions with all offerors. If this reasoning sounds circular, that's because it is. The court said that because the government had not expressly opened discussions, the requests for information could not be discussions and had to be clarifications. The protester's point was that the so-called clarifications constituted discussions in fact that should have resulted in discussions with both offerors.

The last reason the court gave for concluding that the clarifications were not discussions was that they did not result in an actual formal change to the awardee's proposal. In the end, because the proposal did not change after the awardee provided information that may have altered the government's evaluation of the proposal or the government's interpretation of the proposal as reflected in the resulting contract, the clarification did not convert into a discussion.

Jonathan Cain is a member of the law firm Mintz Levin in Washington. The opinions expressed in this article are his. He can be reached by e-mail at jtcain@mintz.com.

About the Author

Jonathan Cain is a member of law firm Mintz Levin.

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