Info. Tech. & Applications Corp. v. United States - 316 F.3d 1312 (Fed. Cir. 2003)

Rule:

Pursuant to 48 C.F.R. § 15.306, "clarifications" are defined as limited exchanges, between the government and offerors, that may occur when award without discussions is contemplated. 48 C.F.R. § 15.306(a)(2002). If 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. 48 C.F.R. § 15.306(a)(2) (2002).

Facts:

The United States Air Force issued Solicitation and Request for Proposals No. FA2550-01-R-0001 ("RFP") to obtain a contract for professional services in support of its Space Warfare Center. The winning contractor was to examine, assess and develop means of integrating national intelligence assets with the Department of Defense space systems, in order to enhance combat and research and development capabilities at the Space Warfare Center. The Air Force intended to make an award to one lead contractor, which would perform overall program management and integration, operations support, systems engineering and analysis, and other work related to the Space Warfare Center. The Information Technology and Applications Corporation ("ITAC"), RS Information Systems, Inc. ("RSIS"), and a third offeror submitted timely proposals in response to the RFP. The Air Force issued a request for proposals and sent "evaluation notices" (ENs) to all three offerors involving a contract for professional services in support of its Space Warfare Center. These ENs were brief letters to the offerors requesting additional information regarding their proposals. The contract was awarded to the RSIS, and ITAC filed a post-award bid protest contending that the Air Force conducted improper "discussions" with the successful bidder by virtue of the ENs under 41 U.S.C.S. § 253b and 48 C.F.R. § 15.306. 

Issue:

Were the Air Force's contacts with RSIS allowable requests for "clarification" of its proposal?

Answer:

Yes

Conclusion:

The appellate court agreed with the claims court that the Air Force's contacts with the successful offeror were allowable requests for clarification. Specifically, the appellate court held that (1) the EN communications were not discussions because the government did not give the successful offeror the opportunity to revise its proposal, and (2) the Air Force's EN request was merely a request for clarification of the relevant experience of the successful offeror's subcontractors, as permitted by 48 C.F.R. § 15.306(a)(2) (2002).