Negotiated acquisitions

Submission of Omitted Proposal Information Not a Clarification

In eMind, (74) the GAO held that the submission of omitted information after the closing date for the receipt of proposals is not an allowable clarification when the omitted information is necessary to determine the technical acceptability of the proposal. The basis for eMind's protest was the rejection of its proposal as technically unacceptable under an Internal Revenue Service (IRS) RFP for off-the-shelf computer-based tax law and accounting courses. The solicitation instructed offerors to submit course descriptions for the courses identified in the schedule, which the agency would use to determine the technical acceptability of proposals. The RFP also advised offerors that the agency intended to award without discussions. (75)

After the closing date for proposals, the contracting officer contacted eMind by telephone to inform it that some of the course names eMind had provided in its schedule did not match the names in the proposal's course catalog section. In an E-mail response, eMind furnished the correct course names. In a subsequent E-mail that same day, eMind provided six course descriptions that it had omitted from its proposal. (76)

During the evaluation phase, the agency evaluation team gave eMind's technical proposal a "fail" rating for the most important technical factor, "Fulfillment of Statement of Work Minimum Requirements." (77) Because eMind's proposal omitted course descriptions for thirteen line items, the evaluators could not determine if eMind's proposed courses satisfied the RFP's minimum requirements. While eMind had provided six additional course descriptions via E-mail, the evaluators determined that consideration of these descriptions would be improper because the agency received them after the RFP's closing date. (78) The team also determined that the majority of descriptions provided failed to meet the RFP's requirements. The agency found eMind's and a third proposal technically unacceptable and awarded to MicroMash. (79)

In its protest, eMind claimed that the IRS should have considered the course descriptions it had submitted via E-mail, arguing that this information was "an allowable clarification of its proposal since the course descriptions were taken directly from its website and were not developed or modified after the proposal closing date." (80) The GAO disagreed. Referencing the FAR's definition of "clarifications," (81) the GAO firmly stated that clarifications "may not be used to furnish information required to determine the technical acceptability of a proposal." (82) Because agencies can only evaluate offers based on the information actually provided in a proposal, the GAO rejected eMind's suggestion that the IRS was somehow put on notice of its capabilities because its course descriptions were on its Web site. Furthermore, there was nothing in eMind's proposal suggesting that the Web site course descriptions were incorporated by reference. (83)