Protester Should Have Sought to Clarify “Scrivener’s Error” in Solicitation Amendment; Candor Solutions, LLC, GAO B-420308 et al.

Protest objecting to agency’s evaluation is denied. The protester complained it had been penalized for not including a signed commitment letter because it submitted a signed letter as part of a revised proposal submitted in response to an amendment. The agency handout considered the revised proposals. The agency said the amendment contained a “scrivener’s error” that indicated revised proposals would be accepted, but other communications from the agency also indicated it would not accept revised proposals. GAO found the amendment contained a patent ambiguity regarding revised proposals. The protester should have sought clarification and could not complain now.

The Transportation Security Administration issued an RFQ seeking a contractor to support the agency’s information systems security officers. TSA received quotations from several businesses, including Candor Solutions and VMD Systems Integrators. Candor and VMD both received the higher possible technical ratings, but TSA concluded that VMD’s was slightly superior. Following award to VMD, Candor protested.

TSA had distinguished between Candor and VMD based on observations it made about Candor’s proposal. Candor objected to these observations. For instance, TSA noted that Candor’s proposed computer security specialist lacked a required certification. Candor attempted to argue that this certification had been subsumed by this individual’s other qualifications. But, GAO noted, this still didn’t change the fact that Candor’s proposed individual lacked a required certification.

TSA had also noted that Candor’s quotation lacked a signed commitment letter from a program manager. Candor claimed it had submitted a signed letter as part a revised proposal that it sent in response to an amendment. TSA countered that to the extent that amendment permitted submission of a revised proposal, it was a “scrivener’s error.” TSA believed it made it clear in other communications that revised proposals would not be accepted. Thus, TSA had not considered Candor’s revised proposal with the signed commitment letter.

GAO sided with TSA. The amendment contained a patent error regarding revised proposals. Candor should have sought clarification from the agency before just submitting a revised proposal. TSA had not been obligated to consider the revised proposal.

Candor is represented by W. Brad English, Jon D. Levin, Emily J. Chancey, Joshua B. Duvall, and Nicholas P. Greer, and Mary Ann Hanke of Maynard Cooper & Gale PC. The intervenor, VMD, is represented by John R. Tolle of Cronogue, Tolle & Werfel, LLP. The agency is represented by Christopher J. Reames, Angela Varner, and Christopher Curry of the Depatment of Homeland Security. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision,

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