Battelle Memorial Institute
B-299533, May 14, 2007
Battelle Memorial Institute protests the exclusion of its proposal from the competition under request for proposal (RFP) No. 2006-N-08556, issued by the Department of Health and Human Services (HHS) for comprehensive technical, scientific, research, and public health support for the National Center on Birth Defects and Developmental Disabilities. Battelle contends that the agency improperly rejected its proposal for omitting option year pricing and that the agency should have, instead, allowed the firm to correct the omission.
We deny the protest.
B-299533, Battelle Memorial Institute, May 14, 2007
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Agency's decision to exclude protester's proposal from competition for failing to include option year pricing was reasonable, where the solication required that proposals contain this pricing and provided for award without discussions; agency was not required to allow protester to correct mistake because, although the omission was evident on the face of the proposal, the protester's intended pricing for the option years was not apparent.
Battelle Memorial Institute protests the exclusion of its proposal from the competition under request for proposal (RFP) No. 2006-N-08556, issued by the Department of Health and Human Services (HHS) for comprehensive technical, scientific, research, and public health support for the
The RFP provided for either a single award or multiple awards of fixed-price indefinite'delivery/indefinite-quantity (ID/IQ) contracts with cost-plus-fixed-fee task orders. RFP at 67-68. Each ID/IQ contract award was to be for a 12-month base period with nine 1'year options, and the maximum value for each awarded contract was stated to be $92 million.
The RFP required offerors to provide two technical proposals: one was to address the RFP, and the other was in response to a request for task order proposal (RFTP) that was attached to the solicitation.
The RFP contemplated a two-step evaluation process. In the first step, the agency was to evaluate technical proposals for the RFP (not the RFTP) and [a]s a result of the RFP technical proposal evaluation, a competitive range will be established. In the second step, the agency was to evaluate RFTP proposals and cost proposals and make award of one or more ID/IQ contracts and one task order award.
Battelle and eight other offerors submitted technical and business proposals by the
After receiving notice from the agency that its proposal was excluded from the competition, Battelle filed a timely agency-level protest. Battelle argued that its omission was a mistake, which Federal Acquisition Regulation (FAR) permits to be corrected at any time up until award, and that the agency should have brought this mistake to Battelle's attention and allowed Battelle to make the correction. Battelle attached to its agency-level protest 24 pages of detailed spreadsheets itemizing the costs for the 9 option years, along with additional proposal pages that modified the narrative portion of the business proposal to include a discussion of the option years. Agency Report, Tab C, Agency-Level Protest, attach. D. HHS denied the agency-level protest, and Battelle protested to our Office.
Battelle argues that the agency improperly rejected its initial proposal based on Battelle's omission of the option year pricing. Battelle contends that the agency should have suspected that Battelle had made a mistake or clerical error in its proposal and had a duty to verify Battelle's proposal and conduct clarifications to allow Battelle to correct the omission. Protest at 3-4, 6-8. In support of its argument, Battelle cites FAR sect. 15.306(a)(2), which permits clarifications to resolve minor or clerical errors, and FAR sect. 15.306(b)(3)(i), which permits communications before the establishment of the competitive range to address proposal ambiguities such as errors, omissions, or mistakes.
An offeror bears the burden of submitting and adequately written proposal that contains all of the information required under a solicitation, Sam Facility Mgmt, Inc., B-292237,
Regarding Battelle's argument that errors, omissions, or mistakes can be corrected by communications before the establishment of the competitive range, FAR sect. 15.306(b)(2) specifically provides that communications under this section shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. See also FAR sect. 15.306(b)(3) (communications shall not provide an opportunity for the offeror to revise its proposal). Again, we agree with the agency that Battelle's omission of the option year pricing is material, given the RFP's requirements to provide detailed option year pricing for evaluation, and any attempt to cure this omission would necessitate submission of a revised proposal and would constitute discussions. See Joint Venture Penauillie, supra, at 8.
Finally, Battelle contends that the agency's decision to eliminate its proposal from further competition was inconsistent with the RFP. According to Battelle, since the RFP provides that the competitive range will be established based only on the evaluation of technical proposals, see RFP at 73, the elimination of Battelle's proposal based on a cost issue was premature and its pricing omissions should have been addressed after establishment of the competitive range and through discussions. However, unless the agency decides to establish a competitive range, the RFP provision referenced by Battelle does not apply, and it does not require the agency to conduct discussions. As noted, the agency has not yet decided to establish a competitive range and to conduct discussions. Rather, the agency rejected Battelle's proposal (along with two others), after inspecting proposals for completeness, for not containing all of the information required by the RFP, a decision which, as discussed above, was reasonable. Consistent with the RFP, if the agency makes award based on initial proposals, then Battelle's proposal cannot be considered for award. If, on the other hand, the agency decides to conduct discussions, we expect that the agency then will have to decide whether or not to include Battelle's proposal in the competitive range. See FAR sect. 15.306(c)(1).
The protest is denied.
Gary L. Kepplinger
 Battelle's proposal references inflation adjustment[s], but provided no details that would allow the agency to calculate Battelle's option year pricing.
 Two other offerors' proposals were also excluded for failing to comply with RFP requirements.
 The agency advises that it has not established a competitive range or held discussions with any of the offerors.
 Battelle's attempts to distinguish Joint Venture Penauillie, supra, are unpersuasive.
 Battelle also contends that it should have been permitted to correct its mistake through a proposal modification, which FAR sect. 15.001 defines as a change made to a proposal . . . to correct a mistake at any time before award. As noted above, we find that the exchanges that would occur here to allow the correction of Battelle's mistake would constitute discussions, and such exchanges are governed by FAR sect. 15.306.