Government Could Consider New Information in Revised Proposal

The government’s consideration of new technical information in an awardee’s final revised proposal for laboratory testing services was proper, according to the Court of Federal Claims, because the government did not restrict the scope of the revisions. In connection with the government’s corrective action in a prior protest before the Government Accountability Office, the government amended the solicitation and the parties updated their proposals and submitted FRPs. After upgrading one of the initial awardee’s ratings under a technical subfactor, the government made the same award decision. Before the court, the protester argued the government improperly considered nonconforming technical revisions in the awardee’s FRP that were outside the scope of the corrective action.

No Limits

The protester correctly noted the disputed revisions were the basis for the increase in the awardee’s rating. However, consistent with the instruction to offerors in FAR 52-215 (c)(6), “[w]hen agency corrective action invites proposal revisions by offerors, the solicitation is reopened, and those offerors can submit modifications until the new closing date. Those modifications are not limited to the areas addressed by the corrective action unless explicitly stated.” Since the solicitation amendment did limit the revisions, the awardee’s technical revisions were proper and the government could accept its offer.

Discussions Not Unequal

There also was no merit to the protester’s allegation the government engaged in unequal discussions regarding updates to the technical proposals. The parties received different answers to their inquiries because they asked different questions. The awardee asked whether it could submit updates to its proposal to account for changes in its capabilities and the passage of time, while the protester asked only whether it should submit a completely new proposal or only the technical volume, if changes were made. “The [government] was under no duty to answer a question not asked of it, nor was it under a duty to restate the general rule that proposal revisions of any kind could be made up until the deadline for final offers.” ( Quest Diagnostics, Inc. v. U.S., et al., FedCl, 57 CCF ¶80,062)