Bcpeabody Construction Services, Inc. v. United States ( 2013 )

In the United States Court of Federal Claims
No. 13-378C
(Filed Under Seal: September 17, 2013)
(Reissued: September 25, 2013)
**********************************
)
BCPEABODY CONSTRUCTION )
SERVICES, INC., ) Post-award bid protest; best-value
) negotiated procurement conducted
Plaintiff, ) under FAR Part 15; a procurement
) official’s discretion to seek clarification
v. ) of minor or clerical errors in offers;
) FAR § 15.306(a)(2); abuse of discretion
UNITED STATES, )
)
Defendant, )
)
and )
)
EDENS CONSTRUCTION CO., INC., )
)
Defendant-Intervenor. )
)
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James E. Krause, Jacksonville, Florida, for plaintiff.
Elizabeth Anne Speck, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her on the briefs
were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Kenneth M. Dintzer, Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C. Of counsel was Carolyn J. Fox, Assistant
District Counsel, United States Army Corps of Engineers, Jacksonville, Florida.
William L. Bruckner, San Diego, California for defendant-intervenor.
OPINION AND ORDER 1
1
Because this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims
(“RCFC”) and the protective order entered in this case, it was initially filed under seal. The
parties were requested to review this decision and provide proposed redactions of any
confidential or proprietary information. The resulting redactions are marked by asterisks
enclosed by brackets, e.g., “[***].”
LETTOW, Judge.
This post-award bid protest concerns a contract awarded by the Department of the Army,
United States Army Corps of Engineers, Jacksonville District (“the Corps” or “the government”),
for construction of a cutoff wall through abandoned culverts, placement of a drainage blanket, re-
pavement of a dike crown, and completion of other ancillary work in Okeechobee County,
Florida. The project was a small-business set aside, conducted as a competitive negotiated
procurement subject to the Federal Acquisition Regulations (“FAR”), 48 C.F.R. Part 15. The
contract was awarded to defendant-intervenor Edens Construction Co., Inc. (“Edens”).
BCPeabody Construction Services, Inc. (“BCPeabody”), a bidder for the contract, protests the
award. On June 21, 2013, the court granted plaintiff’s motion for preliminary injunction, barring
the government from proceeding with the award made to Edens. See BCPeabody Constr. Servs.,
Inc. v. United States, No. 13-378C, 2013 WL 3225844 (Fed. Cl. June 21, 2013). Immediately
thereafter, the court adopted an accelerated schedule of proceedings for resolution of this case.
Now pending before the court are the government’s motion for judgment on the administrative
record (“Def.’s Mot.”), ECF No. 37, Edens’s corresponding motion for judgment on the
administrative record, ECF No. 38, BCPeabody’s cross-motion for judgment on the
administrative record, (“Pl.’s Cross-Mot.”), ECF No. 39, and the government’s motion to correct
the administrative record, ECF No. 48. BCPeabody contends that the Corps did not treat all
offerors fairly and equally and that the contracting officer acted unreasonably when she failed to
clarify an alleged clerical mistake in its bid proposal before rejecting the proposal as technically
unacceptable.
FACTS 2
A. Solicitation
The solicitation at issue, No. W912EP-13-R-0001, called for proposals to complete
construction work for the Herbert Hoover Dike Rehabilitation Project, Culvert 7, Culvert 9, and
Taylor Creek Abandonment in Okeechobee County, Florida. AR 2-56. 3 The Corps’s
2
The recitations that follow constitute findings of fact by the court drawn from the
administrative record of the procurement filed pursuant to RCFC 52.1(a), see Bannum, Inc. v.
United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (specifying that bid protest proceedings
“provide for trial on a paper record, allowing fact-finding by the trial court”), as well as from the
parties’ evidentiary submissions related to prejudice and equitable relief, see Holloway & Co. v.
United States, 87 Fed. Cl. 381, 391 n.12 (2009) (“It is the responsibility of th[e] [c]ourt, not the
administrative agency [conducting the procurement], to provide for factual proceedings directed
toward, and to find facts relevant to, irreparability of harms or prejudice to any party or to the
public interest through grant or denial of injunctive [or declaratory] relief.”) (quoting PGBA,
LLC v. United States, 60 Fed. Cl. 567, 568 n.1 (2004), aff’d, 389 F.3d 1219 (Fed. Cir. 2004)).
3
Citations to the administrative record refer to the record filed on June 19, 2013. That
record is paginated sequentially and also divided into tabs. In citing to the administrative record,
the court will first designate the tab, followed by page number, e.g., AR 2-56 refers to page 56,
which is located in tab 2 of the record.
2
Jacksonville District issued the solicitation pursuant to FAR § 15.101-2, i.e., invoking a
“[l]owest price, technically acceptable source selection process.” AR 2-73. The solicitation
stated that the “[g]overnment intends to evaluate proposals and award a contract without
discussions with offerors (except clarifications as described in FAR § 15.306(a)).” AR 2-65.
The solicitation listed two factors the Corps would evaluate in awarding the contract:
(1) Technical Acceptability and (2) Price. AR 2-74. The Technical Acceptability factor was
split into two sub-factors: (a) Demonstrated Experience and (b) Past Performance. Id. In turn,
the Demonstrated Experience sub-factor contained two sub-elements: (i) Cutoff Wall Experience
and (ii) Earthen Embankment Experience. AR 2-75. If an offeror received a rating of
unacceptable for either sub-element, the offeror would necessarily receive a rating of
unacceptable for both the Demonstrated Experience and Past Performance sub-factors of
Technical Acceptability, and its offer consequently would be rejected as technically
unacceptable. AR 2-76 to -78.
To receive a rating of acceptable for the sub-elements of Cutoff Wall Experience and
Earthen Embankment Experience, the bidders were required to submit project information sheets
for each sub-element to demonstrate that the offeror and its subcontractors had experience
performing the type of work requested in the solicitation. AR 2-75 to -76. One of the projects
submitted for the Cutoff Wall Experience had to include work “penetrating, excavating, and
backfilling through an obstruction that could not be removed by a typical backhoe or excavator
during cutoff wall construction.” AR 2-75.
B. Evaluation of Offers and Award
The Corps received timely proposals from five firms, including BCPeabody and Edens.
BCPeabody’s proposal identified Bauer Foundation Corporation (“Bauer”) as its major
subcontractor for the Cutoff Wall Experience sub-element and provided an unconditional letter
of commitment from Bauer stating that “[Bauer] will fulfill the duties of Cutoff Wall Installation
for the [project]” should BCPeabody receive the contract. AR 4-707. Although BCPeabody’s
proposal included two project information sheets demonstrating that Bauer had experience in
performing cutoff wall construction, AR 4-708 to -11, the two sheets were identical. BCPeabody
mistakenly included two copies of the same project information sheet regarding Bauer’s work.
Id. The submitted project information sheets did not supply the necessary experience regarding
cutoff wall construction in which a sub-surface obstruction was encountered that could not be
removed by a typical backhoe or excavator. AR 9-941. 4 Because of the missing project
information sheet, BCPeabody received a rating of unacceptable for Cutoff Wall Experience.
AR 9-942.
Regarding the second sub-element, Earthen Embankment Experience, BCPeabody
supplied an information sheet relating to its own work, and it received a rating of acceptable for
that sub-element. AR 13-973 to -74. Nonetheless, due to the rating of unacceptable for the
4
BCPeabody had been fully aware of the solicitation requirements and had requested the
appropriate project information sheets from Bauer, including one that would demonstrate its
experience penetrating, excavating, and backfilling through an obstruction that could not be
removed by a typical backhoe or excavator during cutoff wall construction. AR 14-985.
3
Cutoff Wall Experience sub-element, it received a rating of unacceptable for the Demonstrated
Experience sub-factor. AR 9-942. As a result, it also received a rating of unacceptable for Past
Performance. Id. BCPeabody’s offer was considered to be technically unacceptable by the
contracting officer, and she excluded it from the competition. Id. The technical rating process
and the determination that BCPeabody should be found technically unacceptable occurred
without alerting BCPeabody to the mistake in its proposal. BCPeabody’s proffered price was
$3,699,326.26. AR 4-736.
Edens’s proposal was the only proposal deemed technically acceptable, AR 9-946, and
Edens was awarded the contract on December 21, 2012. AR 10-948. Like BCPeabody’s,
Edens’s proposal contained a letter of commitment from Bauer to “fulfill the duties of Cutoff
Wall Installation for the [project]” in the event the contract was awarded to Edens. AR 5-772.
In addressing both sub-elements of the Demonstrated Experience sub-factor, Edens did not use
project information sheets as required by the solicitation. AR 9-944. Nonetheless, it provided
sufficient details about projects completed to receive a rating of acceptable for the sub-factor. Id.
For the Cutoff Wall Experience sub-element, Edens supplied information about two projects
completed by Bauer. See AR 9-943 to -44. The contracting officer thus knew that Bauer had the
requisite experience to perform the cutoff wall construction under either of the conditions
specified in the two sub-elements. Edens’s price quote was $4,783,688.00, more than
$1,000,000 greater than the price put forward by BCPeabody. AR 5-923.
[***] offerors relied on Bauer as a major subcontractor. AR 9-938 to -44. Nothing in
BCPeabody’s or Edens’s proposals indicated an intention to rely on any other subcontractor for
the cutoff wall construction. The proposals by BCPeabody and Edens were identical in that
respect, as were the commitment letters from Bauer that each had appended to its proposal. The
contracting officer indicated that she knew that BCPeabody intended to rely on Bauer for the
cutoff wall construction: “Based on BCPeabody’s proposal, it was clear that BCPeabody
intended to use Bauer as the subcontractor for the cut-off wall.” AR 19c-1046.
But for the unacceptable rating that BCPeabody received for Cutoff Wall Experience due
to its omission of a second project information sheet demonstrating Bauer’s experience with an
underground obstruction, it would have had the lowest priced, technically acceptable bid. The
other three offerors, [***], were all found technically unacceptable, but unlike BCPeabody, they
were found unacceptable for both the Cutoff Wall Experience and the Earthen Embankment
Experience sub-elements. AR 9-934. 5
C. Protests
Following notification that Edens had received the contract and that BCPeabody’s
proposal was found to be technically unacceptable, AR 11-950, BCPeabody requested a
debriefing from the contracting officer, which it received on January 9, 2013. See AR 14-980.
5
Two offerors provided project information sheets from Bauer and owned subsidiaries of
Bauer to demonstrate the necessary experience for the Cutoff Wall Experience sub-element.
Providing project information sheets from owned subsidiaries of Bauer created separate
problems for those two offerors. See AR 9-938 to -44.
4
BCPeabody first learned of the copying error from the debriefing. BCPeabody immediately filed
an agency level protest on January 10, 2013. AR 14-976.
As part of its protest, BCPeabody argued that the government abused its discretion by
failing to inquire about the collating mistake it made regarding information sheets concerning
Bauer’s cutoff wall experience. See AR 14-979 to -80. The agency denied BCPeabody’s
protest, concluding that the contracting officer had no obligation either to clarify the mistake or
to draw any inferences or make any assumptions regarding BCPeabody’s proposal. AR 15-1002,
1004. BCPeabody then filed a protest with the Government Accountability Office (“GAO”) on
February 21, 2013. AR 19q-1280. BCPeabody maintained its argument that the contracting
officer abused her discretion in failing to clarify the alleged clerical mistake, given her
knowledge that BCPeabody planned to use Bauer as the major subcontractor and her knowledge
that Bauer was well-qualified to perform the work. See AR 24-1455; see also BCPeabody
Constr. Servs., Inc., B-408023, 2013 CPD ¶ 120, 2013 WL 1944164, at *3 (Comp. Gen. May 10,
2013).
GAO disagreed with the agency’s conclusion that the contracting officer did not abuse
her discretion. It found that “[a]lthough an offeror has the burden of submitting an adequately
written proposal, and an agency may downgrade a proposal for the lack of requested information,
an agency may not ignore prior performance information of which it is aware.” AR 24-1456;
2013 WL 1944164, at *4 (citing Consolidated Eng’g Servs., Inc., B-279565.2, .3, 99-1 CPD
¶ 75, 1998 WL 1045204, at *4 (Comp. Gen. June 26, 1998)). Because the Corps’s contracting
officer was aware of Bauer’s experience from other proposals, including especially that by
Edens, she could not reasonably find Bauer’s experience acceptable for Edens but unacceptable
for BCPeabody. Id. (“Here, the proposals of both Edens and BCPeabody included [Bauer] as
their respective cut-off wall construction subcontractor, and it was not reasonable for the Corps
to find [Bauer’s] experience acceptable for Edens but unacceptable for BCPeabody.”).
GAO nonetheless denied BCPeabody’s protest, finding that it was not prejudiced by the
contracting officer’s error. AR 24-1457; 2013 WL 1944164, at *4. BCPeabody had included
with its briefing to GAO a project information sheet completed by Bauer Foundations Canada, a
separate legal entity from Bauer. That affiliated entity was not covered by Bauer’s letter of
commitment to BCPeabody, and therefore the protest was denied. AR 24-1457; 2013 WL
1944164, at *5.
Thereafter, BCPeabody filed suit in this court on June 6, 2013. Compl., ECF No. 1.
BCPeabody moved for a preliminary injunction on June 11, 2013 to bar the Corps from
proceeding with the contract. See Pl.’s Mot. for Preliminary Injunction, ECF No. 18. A hearing
was held on June 21, 2013, and the court granted the motion the same day. See Order Granting
Mot. for Preliminary Injunction, 2013 WL 3225844, ECF No. 29. All parties subsequently filed
and briefed cross-motions for judgment on the administrative record, and a hearing was held on
July 23, 2013. Subsequently, to support an argument the government had fleshed out and
elaborated in its reply brief on the merits, the government filed a post-hearing Motion to Correct
the Administrative Record, ECF No. 48, to add to the record proposals submitted by offerors
other than BCPeabody and Edens. Briefing on that motion was completed on August 12, 2013.
5
JURISDICTION
This court has jurisdiction over bid protests pursuant to the Tucker Act, 28 U.S.C.
§ 1491, as amended by the Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12,
110 Stat. 3870, 3784 (Oct. 19, 1996) (codified at 28 U.S.C. § 1491(b)). In pertinent part, the
Tucker Act vests this court with jurisdiction to
render judgment on an action by an interested party objecting to a
solicitation by a [f]ederal agency for bids or proposals for a
proposed contract or to a proposed award or the award of a
contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1). “An interested party is an actual or prospective bidder whose direct
economic interest would be affected by the award of the contract.” Orion Tech., Inc. v. United
States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). A party can show the existence of a “direct
economic interest” by demonstrating that it had a “substantial chance” of winning the award.
Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006) (internal citations
omitted). “[A] bidder has standing to challenge the lawfulness of discretionary acts that operate
to exclude the bidder from consideration in cases where the bidder’s ratings are such that had the
government acted lawfully the bidder would have had a substantial chance of winning the
contract.” ST Net, Inc. v. United States, __ Fed. Cl. __, __, (2013), 2013 WL 4128730, at *5
(citing G4S Tech. CW LLC v. United States, 109 Fed. Cl. 708, 719 (2013)).
BCPeabody is an “interested party” within the terms of the Tucker Act and has standing
to pursue its protest. BCPeabody submitted a bid for the award at issue and contends that only it
and Edens submitted technically acceptable offers. Because it had the lower price by more than
$1,000,000, BCPeabody would have had a substantial chance of winning the contract. 6
STANDARDS FOR DECISION
The Administrative Procedure Act (“APA”), 5 U.S.C. § 706, governs the court’s review
of a challenge to an agency’s contract award. See 28 U.S.C. § 1491(b)(4) (“In any action under
6
The government does not argue that BCPeabody’s copying and collating mistake
prevented BCPeabody from having standing to challenge the contracting officer’s determinations
about its offer, and, indeed, any argument against standing would have been unavailing. See ST
Net, __ Fed. Cl. at __, 2013 WL 4128730, at *6 (citing Orion Tech., 704 F.3d at 1349
(commenting that criticality of missing information is “relevant to the reasonableness of the
[agency’s] decision-making, not to determining prejudice for standing purposes”); MVS USA,
Inc. v. United States, 111 Fed. Cl. 639, 648-49 (2013) (holding that a protestor whose allegation
that the disqualifying flaw in its proposal was due to improper government action had standing to
challenge award); Castle-Rose, Inc. v. United States, 99 Fed. Cl. 517, 523 (2011) (concluding
that a protestor had pled sufficient facts to raise a question whether government properly deemed
its proposal to be late had standing to challenge award)).
6
this subsection, the courts shall review the agency’s decision pursuant to the standards set forth
in section 706 of title 5.”). For that proposition, BCPeabody rests on the potentially viable legal
position that it should have been given notice of its mistake in copying information about
Bauer’s experience and been given the opportunity to correct the mistake. The court may set
aside an agency’s procurement decision if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. § 706, subject to satisfying the criteria for
equitable relief, see PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed. Cir. 2004). To
find that an agency’s decision was arbitrary, capricious, or an abuse of discretion, the court must
conclude that the “decision lacked a rational basis.” Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). The court “is not empowered to
substitute its judgment for that of the agency,” Keeton Corrs., Inc. v. United States, 59 Fed. Cl.
753, 755 (2004) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 105 (1977) (abrogating Overton
Park to the extent that it recognized the APA as an independent grant of subject matter
jurisdiction)), and it must uphold an agency’s decision against a challenge if the “contracting
agency provided a coherent and reasonable explanation of its exercise of discretion.” Axiom Res.
Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal citations omitted).
ANALYSIS
I. Clarification and Unequal Treatment
BCPeabody contends that the contracting officer erred by failing to seek clarification of a
clerical mistake in its proposal and by unequally evaluating Bauer’s demonstrated experience as
a subcontractor for BCPeabody compared to Edens. BCPeabody avers that these actions were
unreasonable and fell outside the reconcilable bounds of the contracting officer’s discretion.
A. A Procuring Official’s Authority Regarding Clerical Errors
Procurement officers have authority to act regarding clerical errors in bid proposals, but
that authority varies depending on the type of procurement at issue – i.e., sealed bidding or
negotiated procurement. Where sealed bids are concerned, the rules regarding clerical and other
mistakes in offers are cast in mandatory terms. FAR Part 14 governs sealed bidding and
provides generally that “[in] cases of apparent mistakes and in cases where the contracting
officer has reason to believe that a mistake may have been made, the contracting officer shall
request from the bidder a verification of the bid, calling attention to the suspected mistake.” FAR
§ 14.407-1 (emphasis added). Regarding “[a]pparent clerical mistakes,” the contracting officer
“shall obtain from the bidder a verification of the bid intended” and attach it to the original bid.
FAR § 14.407-2(a)-(b). Respecting other mistakes disclosed before award, “[s]uspected or
alleged mistakes in bids shall be processed as follows[:] . . . . The contracting officer shall
immediately request the bidder to verify the bid. Action taken to verify bids must be sufficient to
reasonably assure the contracting officer that the bid as confirmed is without error, or to elicit the
allegation of a mistake by the bidder.” FAR § 14.407-3(g)-(g)(1). In instances where the low
bidder seeks to correct the bid but would remain the lowest bidder, the existence of the mistake
and the bid actually intended must be established by “clear and convincing evidence.” FAR
§ 14.407-3(a). The closer the corrected bid comes to the next lowest bid, the greater the scrutiny
7
that will be applied to the evidence of the mistake and the intended bid. In cases where the
corrected bid would be lowered enough to displace another bid as the lowest bid, a stricter
standard applies. Both the mistake and the intended bid must be “ascertainable substantially
from the invitation and the bid itself.” FAR § 14.407-3(a).
For procurements governed by FAR Part 14, GAO has allowed use of mistake-correction
techniques to enable nonresponsive bids to become responsive, applying the stricter standard to
correct bids which displace otherwise low bids. As stated in John Cibinic, Jr., Ralph C. Nash,
Jr., & Christopher R. Yukins, Formation of Government Contracts 649 (4th ed. 2011),
Most cases involving correction of nonresponsive bids have
involved invitations containing a number of bid items where
bidders have incorrectly entered or omitted prices for one or
more of the items. In Slater Elec. Co., Comp. Gen. Dec.
B-183654, 75-2 CPD ¶ 126, GAO dealt with this kind of
situation, stating: “Basically, even though a bidder fails to
submit a price for an item in a bid, that omission can be
corrected if the bid, as submitted, indicates not only the
probability of error but also the exact nature of the error and
the amount intended. The rationale for this exception is that
where the consistency of the pricing pattern in the bidding
documents establishes both the existence of the error and the
bid actually intended, to hold that the bid is nonresponsive
would be to convert what appears to be an obvious clerical
error of omission to a matter of nonresponsiveness.”
Id. (internal citations omitted).
In contrast to the mandatory instructions in FAR Part 14 for handling mistakes
discovered before award in sealed bidding situations, the regulatory provisions regarding
mistakes discovered before award in bids for negotiated procurements are largely discretionary.
FAR § 15.306(a)(1)-(2) allows clarification of certain aspects of proposals or to resolve minor or
clerical errors without the initiation of “discussions.” 7 Specifically, FAR § 15.306(a)(2)
provides that
“[i]f award will be made without conducting discussions, offerors
may be given the opportunity to clarify certain aspects of proposals
(e.g., the relevance of an offeror’s past performance information
and adverse past performance information to which the offeror has
not previously had an opportunity to respond) or to resolve minor
or clerical errors.”
7
Once discussions are initiated for a solicitation governed by FAR Part 15, discussions
must be entered into with all offerors whose proposals fall within a competitive range. See, e.g.,
FAR § 15.306(a)(3), (b)-(e).
8
Id. Clarifications are defined as “limited exchanges, between the [g]overnment and offerors, that
may occur when award without discussions is contemplated.” FAR § 15.306(a)(1). The FAR
does not define “minor or clerical errors.”
The original FAR Part 15, issued in 1984, defined “discussions” to include “information
essential for determining the acceptability of a proposal.” FAR § 15.601 (1997). Revisions to
FAR Part 15 in 1997 deleted this definition of “discussions,” which was viewed as too
constraining, in favor of allowing “as much free exchange of information between offerors and
the [g]overnment as possible, while still permitting award without discussions and complying
with applicable statutes. . . . This policy is expected to help offerors, especially small entities
that may not be familiar with proposal preparation, by permitting easy clarification of limited
aspects of their proposals.” 62 Fed. Reg. 51224, 51228-29 (Sept. 30, 1997) (emphasis added).
While the line between “clarification” and “discussion” is not always easy to demarcate,
some core concepts appertain. Changes to the terms of an offer made in a proposal cannot be
considered a clarification. John Cibinic, Jr., Ralph C. Nash, Jr., & Karen R. O’Brien-DeBakey,
Competitive Negotiation: The Source Selection Process 508 (3d ed. 2011). As Cibinic, Nash and
O’Brien-DeBakey explain, information exchanges that do not concern changes to the terms of
offers may be appropriate in the clarification process: “[I]t is useful to distinguish between
information concerning the capability of the offeror and information relating to the features of
the offer. Whereas the former should clearly be clarifications under FAR [§] 15.206(a), past
decisions dealing with information relating to the offer make inclusion of this type of
communication more problematic.” Id. at 509; see also Information Tech. & Applications Corp.
v. United States, 316 F.3d 1312, 1321 (Fed. Cir. 2003) (reviewing the regulatory history of the
revisions to Part 15 in 1997 regarding clarification and holding that communications for the
purpose of obtaining additional information about subcontractors listed in the offeror’s proposal
constituted clarifications rather than discussions); Mil-Mar Century Corp. v. United States, 111
Fed. Cl. 508, 539 (2013) (“[Although, in a clarification, the winning offeror] may have provided
the [a]gency with required information that was not included in its proposal, the court does not
find that [the offeror] revised its proposal because [it] did not change its total price and did not
‘change the terms of its proposal to make it more appealing to the government.’” (quoting
Information Tech & Applications, 316 F.3d at 1322)).
Despite the intention that the revisions to Part 15 in 1997 would enable more information
to be exchanged between the government and offerors without reaching the level of discussions,
the revisions stopped short of requiring contracting officers to clarify minor or clerical errors in
negotiated procurements, unlike the mandatory nature of the comparable provisions in Part 14
for sealed bidding. Consequently, a fairly sharp divide remains between the clarification rules in
Part 15 for negotiated procurements and the mandatory nature of comparable provisions in Part
14 for sealed bidding. For negotiated procurements, clarifications are to be obtained at the
discretion of the contracting officer. 8 Nonetheless, the permissive language of the clarification
8
Where contracting officers exercised their discretion to seek clarifications, but did not go
so far as to engage in “discussions,” the court has tended to uphold the contracting officers’
actions. See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 44-45 (2010), aff’d, 649
9
provisions in Part 15 does not mean that those provisions are not susceptible to judicial
enforcement.
B. BCPeabody’s Error
BCPeabody alleges that the duplication of the same project information sheet regarding
Bauer’s experience with cutoff wall installation was a copying error in assembling its offer. Pl.’s
Cross-Mot. at 2. BCPeabody concedes that a contracting officer has discretion in clarifying such
clerical errors, but argues that, given the particular circumstances associated with its proposal, it
was unreasonable for the contracting officer to fail to do so. Id. The government responds that
the copying error was not a clerical error, and even if it were, the contracting officer was under
no duty to inquire into it. Def.’s Mot. at 7. According to the government, BCPeabody’s
proposal was incomplete, and the contracting officer had unqualified discretion to reject it as
technically unacceptable. Id.The government goes too far in arguing that BCPeabody’s mistake was a “major
omission that made it impossible for the agency to fully evaluate BCPeabody’s [p]roposal.”
Def.’s Mot. at 7. The record shows that the proposal, taken as a whole, could be properly
evaluated despite the error. The contracting officer knew that BCPeabody intended to rely on
Bauer as the subcontractor for the cutoff wall construction, that Bauer had the requisite
experience to perform the work, and that BCPeabody mistakenly submitted two identical project
information sheets respecting Bauer’s experience. The circumstances are thus closely akin to
those at issue in Information Tech. & Applications and Mil-Mar Century where “clarifications”
provided essential information about a subcontractor and contractor, respectively, but did not
alter or revise the terms of the pertinent offers. See Information Tech. & Applications, 316 F.3d
at 1322; Mil-Mar Century, 111 Fed. Cl. at 539.
By contrast, in ST Net, the protestor had omitted material pricing information. See ST
Net, __ Fed. Cl. at __, 2013 WL 4128730, at *8. Had the protestor included the requisite pricing
items, its total evaluated price would have increased by roughly 7%. Id. Under those
circumstances, it was impossible for the agency accurately to evaluate the protestor’s proposal,
and the court accordingly held that the omission was not a clerical error. Id. at __, 2013 WL
4128730, at *10. In the instant case, the omitted project information sheet did not bear on price
or involve information that the contracting officer did not already know. Inclusion of a second
project information sheet would not have materially altered the terms of BCPeabody’s offer. It
only addressed Bauer’s suitability as a subcontractor, and the contracting officer was well aware
that Bauer was a qualified subcontractor. The court consequently is satisfied that BCPeabody’s
mistake constituted a clerical error within the meaning of FAR § 15.306(a)(2), a matter that
could have been the subject of inquiry by the contracting officer without provoking discussions.
C. The Contracting Officer’s Discretion
F.3d 1320 (Fed. Cir. 2011); see also Dyncorp Int’l, LLC v. United States, 76 Fed. Cl. 528, 540
(2007).
10
Undoubtedly, the language of FAR § 15.306(a)(2) is permissive, and a contracting officer
has discretion in determining whether to seek clarification. Whether that discretion is absolute
and whether an agency’s actions must be reasonable and rational are at issue here. The question
at hand focuses on the extent to which 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 comparable and compelling circumstances for
clarification. 9
The government points to Orion Technology, 704 F.3d 1344, as precedent for the
proposition that it is within an agency’s unqualified discretion to reject a technically incomplete
proposal. See Def.’s Mot. at 7, 12-13. In Orion, the protestor submitted a proposal on the last
possible day and omitted proprietary cost information for five of its eight subcontractors. Orion,
704 F.3d at 1346. Eight days later, the soliciting agency received the missing subcontractor data,
but refused to consider it. Id. The protestor’s proposal was subsequently rejected because,
without the subcontractor data, the agency could not perform a cost-realism analysis of the
proposal. Id. at 1346-47. The court of appeals held that it was within the agency’s discretion to
reject the belatedly submitted information and to exclude the proposal because it could not
perform the necessary cost-realism analysis. Id. at 1351. As in ST Net, the protestor’s omission
in Orion was material and prevented the soliciting agency from accurately evaluating the
proposal. The technical incompleteness in BCPeabody’s proposal does not rise to that level.
BCPeabody’s mistaken omission did not impair the contracting officer’s ability to evaluate
BCPeabody’s fitness or price quote for the contract.
9
A knowledgeable commentator has questioned whether the standards for correction of
minor or clerical errors should be sharply divergent between the two types of procurements. See
Ralph C. Nash, 27 No. 9 Nash & Cibinic Rep., Correcting Mistakes: Negotiation v. Sealed
Bidding, ¶ 41 (Sept. 2013) (“[W]e can’t see how the [g]overnment would be harmed by adopting
a mandatory verification and mistake correction rule when competitive negotiation is the
procurement technique. When the [g]overnment uses long and complex solicitations, mistakes
can be expected. It would seem that both parties would benefit from a rule that compensates for
such mistakes. Companies that spend the money required to compete in these circumstances
would be given fair treatment and the agencies would have a better chance of awarding to the
offeror(s) that really can deliver best value.”). This sentiment was evident in the court’s decision
in Griffy’s Landscape Maintenance LLC v. United States, 46 Fed. Cl. 257 (2000), where the
protestor’s contact information for its insurance representative was missing from the proposal.
The court held that the omission was clerical and that the contracting officer had a duty to
inquire into it even though it was a negotiated procurement and not a sealed bid procurement. Id.
at 259 (“In character it was the same as a sealed bid procurement where there are no post-
submission contacts with bidders.”). At the time of the solicitation, Griffy’s was performing
another contract for the Army, and the court reasoned that the Army could have easily discerned
the contact information from its own files or called Griffy’s. Id. at 260. The decision in Griffy’s
Landscape has been criticized for applying the criteria for correcting minor or clerical errors in
sealed bidding situations to a negotiated procurement. See C.W. Over & Sons, Inc. v. United
States, 54 Fed. Cl. 514, 521 (2002); see also Camden Shipping Corp. v. United States, 89 Fed.
Cl. 433, 438 & n.5 (2009).
11
A prior decision by this court can be read to imply that a contracting officer’s discretion
under FAR § 15.306(a) is so broad that he or she would never have a duty to seek clarifications.
In Gulf Group, Inc. v. United States, 61 Fed. Cl. 338 (2004), the court held that a contracting
officer did not abuse his discretion when, without explanation, he failed to clarify uncertainties in
the protestor’s past performance information even though the technical evaluation team reported
that clarifications were “required” before a final evaluation could be made. Id. at 360-61. In
describing FAR Part 15, the court wrote, “[W]henever the contracting officials think a
clarification of certain aspects of a proposal would be helpful, they have the discretion to seek
such a clarification, even when discussions with all bidders would not occur. The FAR allows,
but does not require, such exchanges to take place.” Id. at 360. Taken at face value, this court
concurs with such a statement, but it cannot accept the implication that there are never situations
in which a contracting officer’s discretion would be abused by a failure to seek clarification.
This is particularly true where, as here, the clerical error led the contracting officer to
evaluate the past performance of a subcontractor differently for two offerors. Contracting
officers are required to “ensure that contractors receive impartial, fair, and equitable treatment.”
FAR § 1.602-2(b). In addressing BCPeabody’s protest to GAO, that body pointed out that in a
procurement, “an agency may not ignore prior performance information of which it is aware.”
AR 24-1456, 2013 WL 1944164, at *4 (citing Consolidated Eng’g Servs., Inc., B-279565.2,
1998 CPD ¶ 75, 1998 WL 1045204, at *4 (Comp. Gen. June 26, 1998)). That principle applies
here. Once the contracting officer became aware of the suitability of Bauer’s past experience
with cutoff wall construction, she could not reasonably rate Bauer differently for BCPeabody as
contrasted to Edens. Given BCPeabody’s significantly lower bid, the contracting officer had
virtually overwhelming cause to contact BCPeabody about the clerical error or assign an equal
rating for Bauer as a subcontractor for both Edens and BCPeabody.
The government argues that requiring the contracting officer to clarify the copying
mistake in this case will “[obligate] the agency to correct each and every so-called ‘clerical error’
[and] create a paternalistic acquisition system that the drafters of the [FAR] rejected.” Def.’s
Mot. at 7. That argument amounts to a policy-based plea for the court to recognize an
unreviewable discretion on the part of the contracting officer to omit inquiring about “minor or
clerical errors.” As suggested previously, that contention is legally unpersuasive and factually
untenable on the record of this case. The contracting officer had all of the information she
needed about BCPeabody’s proposal, including all price information, and about Bauer’s
qualifications as a subcontractor.
In a last-ditch effort to sustain the contracting officer, the government makes a counter-
factual contention that it was “fundamentally unclear” to the contracting officer “whether Bauer
was the only major subcontractor that BCPeabody would use to perform the [subcontracted]
work.” Def.’s Reply at 6. The government points to two other offerors who proposed to use
Bauer for cutoff wall construction but to do so along with other subcontractors, including Bauer
Foundations Canada. Id. 10 This argument manifestly is a construct of counsel, not borne out by
the record of the contracting officer’s actions. The contracting officer excluded BCPeabody’s
10
In support, the government belatedly moved post-hearing to “correct” the record by
including the proposals of other contractors..
12
proposal solely because it was lacking a second project information sheet, not because it was
“fundamentally unclear” who BCPeabody intended to use as a subcontractor and whether that
subcontractor had the requisite experience. Indeed, BCPeabody, like Edens, had included as part
of its offer an unconditional commitment from Bauer that “[Bauer] will fulfill the duties of
Cutoff Wall Installation for the [project].” AR 4-707. That commitment was categorical and
unambiguous.
In short, BCPeabody has established that the contracting officer in this case abused her
discretion in two ways. First, she impermissibly found Bauer, the projected subcontractor for
both BCPeabody and Edens, to have acceptable experience insofar as Edens’s proposal was
concerned but not for BCPeabody’s competing proposal. Second, she improperly refused to seek
clarification from BCPeabody regarding the copying mistake in BCPeabody’s offer that related
to Bauer’s experience in cutoff wall construction in which a sub-surface obstruction was
encountered.
II. Prejudice
To succeed on the merits, a bid protestor must show not only that there was an error in
the procurement process but also that it was prejudiced by the error. See Data Gen. Corp. v.
Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996). In this respect, a protestor must demonstrate that
there was a “substantial chance it would have received [the] contract award, but for the alleged
error in the procurement process.” McAfee, Inc. v. United States, 111 Fed. Cl. 696, 712 (2013)
(quoting Gentex Corp. v. United States, 58 Fed. Cl. 634, 653 (2003) (in turn citing Information
Tech. & Applications, 316 F.3d at 1319)); see also Alfa Laval Separation, Inc. v. United States,
175 F.3d 1365, 1367 (Fed. Cir. 1999). This inquiry into “prejudice” is distinct from the inquiry
into standing. While both use the “substantial chance” doctrine, prejudice at the jurisdictional
threshold can be satisfied on the basis of the plaintiff’s allegations, whereas prejudice on the
merits can only be satisfied by the effect of an agency decision adjudged to be unlawful. See
Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 696 (2010).
BCPeabody has demonstrated that it was prejudiced by the contracting officer’s abuse of
discretion. If the contracting officer had acted reasonably in light of the facts and circumstances
at hand, BCPeabody would have had a “substantial chance” of receiving the contract.
BCPeabody would have been a technically acceptable bidder offering the lowest price by more
than $1,000,000.
III. Equitable Factors
To grant equitable relief which would set aside and enjoin the Corps’s award of the
contract to Edens, the court must consider “whether (1) the plaintiff has succeeded on the merits,
(2) the plaintiff will suffer irreparable harm if the court withholds the injunctive relief, (3) the
balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the
public interest is served by a grant of injunctive relief.” Centech Grp., Inc. v. United States, 554
F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228-29
(Fed. Cir. 2004)).
13
Looking at each factor in turn, BCPeabody has succeeded on the merits by showing that
the contracting officer acted unreasonably by excluding BCPeabody’s proposal from
competition. She could have either clarified the clerical mistake or evaluated Bauer equally for
both Edens and BCPeabody. The first factor weighs in favor of BCPeabody.
BCPeabody argues that it will suffer irreparable harm if it is denied injunctive relief
because it will have been “denied a fair opportunity to compete under the solicitation and to
benefit from a lawful procurement process.” Pl.’s Mot. for Preliminary Injunction at 17. The
government argues that neither denial of a fair opportunity to compete nor lost economic profits
can constitute irreparable harm. Def.’s Reply at 26-27. The government inaccurately cites eBay,
Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), for the proposition that denial of a fair
opportunity to compete is not irreparable harm. See Def.’s Reply at 26-27. In eBay, the
Supreme Court simply held there should be no presumption that permanent injunctions should
issue in patent cases, and, instead, that such injunctions should be considered in accord with the
generic four-factor test, just as in any other case. 547 U.S. at 394. The Supreme Court said
nothing about denial of a fair opportunity to compete in the context of a bid protest. In
contradiction to the government’s second argument, the court has repeatedly held that the loss of
potential profits from a government contract can constitute irreparable harm. See Furniture by
Thurston v. United States, 103 Fed. Cl. 505, 520 (2012) (citing cases). In this instance, denial of
a fair opportunity to compete and loss of financial benefit from a lawful procurement process
constitute irreparable harm.
The court must balance the potential harm to the plaintiff of not granting the injunction
against the potential harm to the Corps and to the awardee should the injunction be granted. See
PGBA, 389 F.3d at 1231-32; Gentex, 58 Fed. Cl. at 654. Edens would suffer an economic
hardship if the contract award is rescinded, but if BCPeabody is only awarded bid preparation
costs, it would suffer a corresponding hardship. The government, however, has not indicated any
special consequence to delaying contract award and reevaluating the proposals. There is no
evidence that the construction work must be undertaken immediately to rectify a pressing
problem. The government has not demonstrated that the balance of hardships should weigh in its
favor.
It is well established that the public interest is well-served by ensuring that the
government procurement process is fair and even-handed. PGBA, LLC v. United States, 60 Fed.
Cl. 196, 221 (2004), aff’d, 389 F.3d 1219. The public has no urgent need for completion of the
construction work and will not be harmed by a short delay while the Corps reevaluates proposals.
Considering all of the factors, the court finds that a permanent injunction barring the
Corps from awarding the contract to Edens and requiring it to restore BCPeabody to the
competition and reevaluate proposals is justified.
CONCLUSION
For the reasons stated, BCPeabody’s motion for judgment on the administrative record is
GRANTED, as is BCPeabody’s Motion for Permanent Injunction, ECF No. 47. The
government’s and Edens’s motions for judgment on the administrative record are accordingly
14
DENIED. The Corps’s award of the contract to Edens is set aside, 11 and the Corps is required to
restore BCPeabody to the competition and to reevaluate the proposals that were submitted. 12
The clerk is directed to issue a final judgment in accord with this disposition. 13
Costs are awarded to plaintiff.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
11
This aspect of the decision has been amended to accord with the court’s grant of
defendant’s motion to clarify the judgment, filed September 24, 2013.
12
BCPeabody is relieved of the responsibility to maintain the security bond that it was
required to post pursuant to RCFC 65(c), in connection with the issuance of the preliminary
injunction.
13
BCPeabody’s Motion to File Affidavit in Support of Pl.’s Motion for Judgment on the
Admin. Record, ECF No. 40, is GRANTED IN PART. The affidavit is taken into the record of
the case but shall not be considered a supplement to the administrative record of the agency’s
actions in the procurement. The government’s Motion to Correct the Administrative Record,
ECF No. 48, is GRANTED.
15