A recently released advisory opinion from the U.S. Government Accountability Office (GAO) is a reminder that seemingly small mistakes in a proposal may have significant consequences. A separate advisory opinion in connection with the same procurement, however, demonstrates that not all proposal errors are fatal to an offeror's chances of receiving an award. Contractors should understand the circumstances in which an arguably minor mistake will disqualify a proposal, and when it will not.
In The Arbinger Company–Advisory Opinion, the GAO advised that it would have denied a protest of an agency's decision to eliminate the protester from the General Services Administration's Human Capital and Training Solutions Small Business solicitation. B-413156.21, Oct. 14, 2016, 2017 CPD ¶ 100 at 2. The contractor argued that the agency had unreasonably rejected its proposal for a minor mistake that could have been resolved through clarifications.1 Specifically, the protester had submitted a version of a self-scoring worksheet meant for use by non-small businesses, instead of the proper version for the small business set-aside portion of the solicitation. The protester argued that its use of the wrong worksheet was a minor informality that the agency should have corrected by seeking clarification or allowing it to submit the proposal information on the correct form. Even though the forms were almost identical and did not reflect a higher score as a result of the protester's use of the wrong worksheet, the GAO disagreed. The GAO found that the solicitation was clear that failure to comply with its requirements may result in a proposal's rejection, and that attachments could not be altered or resubmitted.
By contrast, the GAO indicated that it would have sustained the protest of another offeror in the same procurement. In The McKinley Group, LLC–Advisory Opinion, the GAO found the agency's rejection of a proposal on the basis that the protester used an incorrect form to report a particular type of past performance was unreasonable. B-413156.22, Oct. 14, 2016, 2017 CPD ¶ 101 at 2.2 The GAO essentially found that the incorrect form amounted to a paragraph numbering or sequence error in the protester's past performance submission.
In both of these cases, the agency argued that the protesters failed to follow the solicitation instructions and that the solicitation did not permit offerors to cure deficiencies or alter their proposal after submission. Similarly, both protesters argued that their proposals included a minor error that could have easily been corrected. Why was it reasonable for the agency to reject the first proposal, but not the second?
The key difference appears to be that the proposal error in The Arbinger Company had the potential for impacting the initial evaluation prior to any determination by the agency to hold discussions. Since the protester was competing for the small business pool, the correct worksheet required it to indicate its socioeconomic status. However, the worksheet mistakenly used by the protester contained different information—specifically, information indicating whether it exceeded small business subcontracting goals that was worth 75 points for each qualifying project. Accordingly, the protester's use of the incorrect worksheet enabled it to score extra points and thus impact the initial evaluation.
In contrast, the incorrect past performance form in The McKinley Group was not a material omission or deficiency because the proposal included all of the information that was necessary to evaluate the proposal. Moreover, the GAO noted that the agency did not argue that it would be unable to validate the protester's score or that the score could change in some way, had the agency accepted the past performance information that was reported out of sequence.
The different outcomes in The Arbinger Company and The McKinley Group demonstrate that not all proposal mistakes will be treated in the same manner. The agency eliminated the proposals of both protesters in the same procurement for using an incorrect form. The key test is not how easy it would be to fix the error. Indeed, both protesters argued that the alleged errors were minor and could have been resolved easily through clarifications. The outcome will depend upon the nature of the error. The form in The McKinley Group did not substantively impact, or have the potential to impact, the agency's initial evaluation, whereas the form in The Arbinger Company could have changed the protester's initial scoring.
Contractors run the risk that agencies will reject their proposals if they do not comply with all proposal instructions. Even arguably minor or easily correctable errors may result in the elimination of a proposal if the error could impact the initial evaluation. Consequently, contractors should not rely on the agency's discretion to seek clarifications or the expectation that errors can be resolved during discussions.
[1] Clarifications are "limited exchanges" between a contracting agency and offerors that allow the agency to clarify ambiguities or minor errors in proposals. See Federal Acquisition Regulation (FAR) 15.306(a). By contrast, discussions are negotiations conducted after the establishment of the competitive range. FAR 15.306(d). Unlike clarifications, discussions must be conducted with every offeror in the competitive range.
[2] James Y. Boland of Venable LLP represented The McKinley Group, LLC in this protest.