United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

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. 

Decision 

Matter of: Environmental Quality Management, Inc. 

File: B-402247.2 

Date: March 9, 2010 

Brian W. Craver, Esq., Person & Craver LLP, for the protester. 

Marvin K. Gibbs, Esq., Department of the Air Force, for the agency. 

Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. Protest that agency erred in not alerting protester to alleged error in protester’s 

proposal is denied where the alleged error was material to the acceptability of the 

proposal and thus could be corrected only through discussions, and agency, as 

permitted under the solicitation, did not conduct discussions with any offerors. 

2. Protest that agency’s exchanges with offerors other than the protester constituted 

discussions is denied where no offeror was permitted to make any material revision 

to its proposal. 

DECISION 

Environmental Quality Management, Inc. (EQM) of Cincinnati, Ohio, protests the 

awards of indefinite-delivery/indefinite-quantity (ID/IQ) contracts to seven other 

firms by the Department of the Air Force Center for Engineering and the 

Environment (AFCEE) under request for proposals (RFP) No. FA8903-09-R-8374, for 

environmental, construction, operations, and other services. 

We deny the protest. 

BACKGROUND 

AFCEE issued the solicitation on May 6, 2009, as a small business set-aside for 

environmental restoration and remediation; minor construction, demolition, and 

repairs; and operations and other services to be performed at Department of Defense 

locations throughout the world, but primarily in the continental United States. The 

solicitation contemplated the award of five to eight ID/IQ contracts, but reserved the 
right to make fewer, more, or no awards based on the quantity and quality of the 

proposals received. The ceiling price for all required services set forth in the 

solicitation was $350 million. 

Awards were to be made on the basis of best value to the agency, and on the basis of 

an integrated assessment of proposals against all source selection criteria identified 

in the solicitation. The factors to be used in evaluating proposals were mission 

capability, past performance, and price, in descending order of importance. The 

mission capability evaluation factor also included three subfactors: corporate 

experience, resources, and management approach. Among these subfactors, 

corporate experience was more important than resources and management 

approach, which were of equal importance. The solicitation stated that the agency 

intended to make awards without discussions. RFP § M, ¶ 7.0. 

As relevant here, the corporate experience subfactor under the mission capability 

factor included a requirement that offerors submit “projects” demonstrating their 

team’s ability to perform the statement of work.1 RFP § L, ¶ 4.3(a)(1). The 

solicitation also specified that, under this subfactor, “[o]ne project must be 

submitted for each [t]eam member expected to perform 20% or more of the work on 

the basic contract.” Id. at 4.3(a)(3) (emphasis in original).2

 

The solicitation also identified evaluation ratings that the agency could give a 

proposal with regard to the subfactors under the mission capability factor. The 

ratings included blue/exceptional, green/acceptable, yellow/marginal, and 

red/unacceptable. The red/unacceptable rating was applicable to a proposal that 

“[f]ails to meet specified minimum performance or capability requirements. The 

proposal has one or more deficiencies and is not awardable.” RFP § M, ¶ 2.0. 

EQM was among 30 offerors who submitted proposals by the specified closing date. 

In its proposal, EQM identified several team members expected to perform 

 

1

 The solicitation stated that: “A Project, as submitted by the offeror for evaluation 

under this solicitation for basic contract award, shall consist of a SINGLE task order, 

delivery order or work order issued under an ID/IQ contract or any other multiple 

delivery type contract (includes SABER and Basic Ordering Agreements), or a standalone contract for a government or commercial client. A project shall have a dollar 

value of not less than $100K and not greater than $2.5M.” RFP § L, at 7. 

2

 The solicitation stated that “the Government will consider the Offeror, teaming 

members, and subcontractors as a part of the team when a signed Teaming 

Arrangement (TA) or Letter of Intent (LOI) is provided.” RFP § L, at 7. (emphasis in 

original). The solicitation further provided that, to be valid under the solicitation, a 

TA or LOI “must commit the parties to performance under this contract, should it be 

awarded to the Offeror.” Id. 

Page 2 B-402247.2 
significant portions of the work under the basic contract. For example, EQM’s 

proposal identified three team members--referred to as [deleted], [deleted], and 

[deleted]--expected to perform 20 percent, 15 percent, and 20 percent of the work 

under the basic contract, respectively. EQM Contracting Proposal, at 88. The 

proposal also identified four other team members expected to perform 5 percent of 

the work each. Id. 

In its technical proposal, EQM submitted projects for several of its team members, 

including [deleted] and [deleted]. However, contrary to the terms of the solicitation, 

EQM failed to submit a project for [deleted], a team member identified to perform 20 

percent or more of the work. EQM Technical Proposal at 83-85. 

In the initial evaluation, the AFCEE evaluation team found errors in nearly all of the 

proposals received. Therefore, after the initial evaluation, members of the 

evaluation team met with the contracting officer to discuss the issuance of 

clarifications to offerors under Federal Acquisition Regulation (FAR) § 15.306(a). 

Under FAR § 15.306(a), where award without discussions is contemplated, offerors 

may still be given the opportunity to clarify certain aspects of proposals, such as 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. At the meeting on the issuance of 

clarifications, the contracting officer decided to issue evaluation notices to 28 of the 

30 offerors, relating to issues of relevance of past performance, as well as errors in 

the proposals that were considered minor or ministerial. Among the errors that the 

contracting officer found appropriate for clarification were ambiguities in an 

offeror’s past performance references, apparently missing fringe rate information, 

and failures to complete Section K certifications, among others. 

In contrast, with regard to EQM’s failure to submit a project for a team member 

expected to perform 20 percent or more of the work under the basic contract, 

AFCEE concluded that the error was material rather than minor and thus not subject 

to clarification, as material revisions to proposals are allowable only when 

conducting discussions under FAR § 15.306(d). Accordingly, the agency did not 

issue an evaluation notice to EQM regarding its failure to provide a required project 

for its team member, and its proposal received a deficiency and a red/unacceptable 

rating under the corporate experience subfactor of the mission capability factor, 

rendering its proposal ineligible for award. 

AFCEE ultimately issued contract awards to seven firms on November 6. EQM 

requested a debriefing, which concluded on November 25. EQM then filed this 

protest on November 30. 

Page 3 B-402247.2 
ANALYSIS 

As a preliminary matter, EQM asserts that it did not submit a project for [deleted] 

because [deleted] was not actually expected to perform 20 percent of the work 

under the basic contract. Rather, EQM asserts that [deleted] and [deleted] were the 

team members expected to perform 20 percent of the work, while [deleted] was 

expected to perform only 15 percent of the work. Accordingly, EQM contends that 

the error in its proposal was not a failure to submit a required project, but rather the 

transposition of the percentages of work to be performed by [deleted] and [deleted]. 

Clarifications 

EQM argues that its allegation that the transposition of percentages was the actual 

error in its proposal is supported by the fact that it did submit a project for [deleted], 

a firm identified in its proposal as expected to perform less than 20 percent of the 

work (and thus a firm for which no project submission would be required under the 

solicitation), and that, because the transposition error was minor and clerical in 

nature, it was a proper subject for clarifications. EQM argues that AFCEE’s 

decision to allow clarification of similar errors in other offerors’ proposals created 

an obligation to allow EQM to clarify its mistake in order to maintain fair treatment 

of all offerors.3

As a preliminary matter, we disagree with EQM’s assertion that its alleged error of 

transposition of the percentages of work for [deleted] and [deleted] reasonably could 

have been detected by AFCEE in its evaluation of proposals. As the agency points 

out in its report, EQM submitted projects for several of its team members who were 

identified in its proposal as expected to perform less than 20 percent of the work. 

Thus, the fact that EQM submitted a project for [deleted], identified as being 

expected to perform 15 percent of the work, did not alert the agency to the potential 

that [deleted], and not another team member, was expected to perform 20 percent of 

the work. On the contrary, the only error that the agency could have reasonably 

 

3

 EQM also argues that AFCEE was obligated to give EQM the opportunity to clarify 

the error in its proposal, citing Griffy’s Landscape Maint. v. United States, 46 Fed. Cl. 

257, 260 (2000), in which the Court held that the contracting agency had a duty to 

permit an offeror to furnish insurance contact information missing from its proposal, 

an omission the Court characterized as a clerical mistake. Subsequent decisions 

have questioned the holding in Griffy’s in the context of negotiated procurements. 

See Camden Shipping Corp. v. United States, 89 Fed. Cl. 433, 438 n.5 (2009); C.W. 

Over & Sons, 54 Fed. Cl. 514, 521 n.10 (2002). In any event, the holding in Griffy’s

applied only to errors that are clerical and minor in nature, which, as explained 

above, the error in EQM’s proposal is not. 

Page 4 B-402247.2 
identified in EQM’s proposal was the failure to submit a project for a team member 

expected to perform 20 percent of the work. Such an error could not reasonably be 

considered a minor or clerical error subject to correction through clarifications. 

With regard to EQM’s contention that the alleged transposition error was minor or 

clerical in nature, we also disagree. Minor or clerical errors subject to clarifications 

stand in contrast to material modifications of proposals which can occur only under 

the discussion process set out at FAR § 15.306(d). Here, the contribution of effort 

expected from each team member identified in the proposal, stated in the 

percentages at issue here, was a material aspect of each offeror’s proposal, and 

affected the agency’s evaluation of proposals as set forth in the solicitation. Thus, no 

matter how minor or clerical the transposition error may have been in its 

commission, it was clearly material in its effect, and as such cannot be considered 

subject to correction through clarifications, but only through discussions under FAR 

§ 15.306(d). See Cooperativa Maratori Riuniti--Anese, B-294747, Oct. 15, 2004, 2004 

CPD ¶ 210. Accordingly, we disagree with EQM that the error it asserts it 

committed, or the error AFCEE reasonably perceived, was correctable through 

clarifications, and we find no basis to sustain the protest based on these arguments. 

Discussions 

EQM contends, in the alternative, that some of the exchanges with 28 of the 

30 offerors actually constituted discussions under FAR § 15.306(d), necessitating 

discussions with all offerors regarding the weaknesses in their proposals, including 

EQM’s transposition error or failure to submit a project for [deleted]. Specifically, 

EQM points to three AFCEE clarification questions that EQM believes constituted 

discussions. 

The first of these clarification questions related to an offeror’s apparent failure to 

show the fringe rate applied to its direct labor rates, as required by the solicitation. 

RFP § L, ¶ 6.4(b)(5). In response, AFCEE issued an evaluation notice stating: 

It appears the fringe rate was not applied to the direct labor for the 

sample task order. Clarify if the fringe rate was applied to the direct 

labor in the sample task order and direct us to where it is shown in 

the data provided under Tab 6.4(c). NOTE: The Government is not 

requesting a revision. Therefore, any revision to information 

submitted in your offer will not be accepted. 

Agency Report (AR), Tab 9(g), Evaluation Notice, at 11. The offeror responded that, 

although its audited fringe rate was applied to the direct labor, and shown in the 

electronic version of the Excel worksheet submitted in Tab 6.4(c), the Excel 

worksheet containing the fringe rate was hidden, and did not appear in the printed 

Page 5 B-402247.2 
version of the spreadsheet viewed by the agency.4

 Id. Based on that response, 

AFCEE determined that the issue was resolved, and considered the offeror’s 

proposal acceptable. 

In a declaration submitted by AFCEE during this protest, the price analyst for this 

procurement explained that he had reviewed the hard copy and electronic copy of 

the offeror’s submittal, but could not determine the exact fringe rate. Upon 

receiving the offeror’s clarification response, however, the price analyst again 

reviewed the electronic copy and found several hidden sheets, including a sheet 

titled “labor rates.” The price analyst found that this sheet contained the offeror’s 

hourly rate and labor burden (fringe rate). The price analyst also states that “[i]n 

hindsight, I should have checked for hidden sheets . . . [h]ad I checked for hidden 

sheets the clarification [evaluation notice] would not have been needed.” 

Supplemental AR, Declaration, at 1. 

EQM argues that this exchange constituted discussions because the rate contained 

in the hidden sheet was labeled “labor burden” rather than “fringe rate.” According 

to EQM, the exchange therefore could not have been a mere confirmation of 

submitted information, because the offeror’s true response was that the rate labeled 

“labor burden” was in fact the “fringe rate” sought by the agency. According to 

EQM, because that information was not contained in the proposal, the offeror in 

effect was permitted to modify its submission, and the exchange constituted 

discussions. 

As a general rule, discussions occur where the government communicates with an 

offeror for the purpose of obtaining information essential to determine the 

acceptability of a proposal, or provides the offeror an opportunity to revise or 

modify its proposal in some material respect. FAR § 15.306(d)(3); Priority One 

Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5. Clarifications, 

on the other hand, are “limited exchanges” agencies may use to allow offerors to 

clarify certain aspects of their proposals or resolve minor or clerical mistakes. FAR 

§ 15.306(a)(2); Manthos Eng’g, LLC, B-401751, Oct. 16, 2009, 2009 CPD ¶ 216. In 

situations where there is a dispute regarding whether communications between an 

agency and an offeror constituted discussions, the acid test is whether the offeror 

has been afforded an opportunity to revise or modify its proposal. TDS, Inc., 

B-292674, Nov. 12, 2003, 2003 CPD ¶ 204 at 6. If an agency holds discussions with 

one offeror, it must hold discussions with all offerors whose proposals are in the 

competitive range. FAR § 15.306(d)(1); International Res. Group, B-286663, Jan. 31, 

2001, 2001 CPD ¶ 35 at 6. 

 

4

 In the Excel software program, background worksheets may be “hidden” so that 

they do not appear. These “hidden” worksheets remain a part of the Excel file, 

however, and may be “unhidden” and viewed upon selection by the user. 

Page 6 B-402247.2 
Here, it is clear from the evaluation notice and declaration of the price analyst that 

the agency was not initially aware of the hidden sheets in the offeror’s electronic 

submission, and for that reason was unable to determine if the offeror’s fringe rate 

was applied to the labor rates, or what the fringe rate might be. The exchange 

between the offeror and AFCEE brought the hidden sheets in the offeror’s proposal 

to AFCEE’s attention for the first time, and allowed the price analyst to locate the 

necessary information in the proposal. That the information was not labeled as the 

“fringe rate” is immaterial. In sum, the record is clear that the exchange in question 

constituted a confirmation of information that was already contained in the proposal 

(though initially hidden), and fell within the bounds of a clarification under 

FAR § 15.306(a). 

EQM’s next two arguments that the exchanges conducted by AFCEE constituted 

discussions relate to evaluation notices concerning past performance information. 

Specifically, AFCEE issued evaluation notices to offerors regarding the dollar value 

of their past performance reference contracts, and their stage of completion. The 

solicitation required past performance reference contracts to have dollar values 

between $100,000 and $2.5 million, and to be at least 80 percent complete.5 RFP § L, 

¶ 5.4(a). 

Only one offeror received an evaluation notice regarding the dollar amount of a past 

performance reference contract. That offeror had submitted one contract for the 

past performance evaluation that it identified as having dollar value of $2.5 million. 

AFCEE issued an evaluation notice to the offeror requesting that it “[c]onfirm or 

correct the dollar amount for this task order.” AR, Tab 9c. The offeror responded 

that the dollar amount was not correct due to a mistake, and that the value of the 

contract was actually $1.12 million. AFCEE accepted this correction and evaluated 

the reference. EQM argues that this exchange resulted in a modification of the 

offeror’s proposal and constituted discussions. 

We disagree. Section M of the solicitation listed the dollar value of past performance 

reference contracts as a consideration within the evaluation category of “past 

performance relevance.” RFP § M, ¶ 3.0(b)(2). This provision is significant here 

because “the relevance of an offeror’s past performance information” is given as a 

specific example of aspects of an offeror’s proposal that can be addressed through 

the clarifications process. FAR § 15.306(a). Therefore, because the information 

involved in this exchange related to AFCEE’s evaluation of the relevance of the 

offeror’s past performance references, the offeror’s correction of this information 

through exchanges did not constitute discussions. 

 

5

 The RFP measured the stage of completion of a contract based on a percentage of 

how many dollars had been billed by the contractor (expensed) in comparison to the 

contract’s total dollar value. 

Page 7 B-402247.2 
Several offerors received evaluation notices concerning the stage of completion of 

their past performance reference contracts. As an example, one offeror submitted a 

past performance reference contract with a period of performance beginning on 

June 20, 2007, and ending on June 5, 2011. Accordingly, it appeared that only 

approximately 50 percent of the term of the contract had passed by the date the 

solicitation was issued. To clarify how this contract could be 80 percent expensed, 

AFCEE issued the offeror an evaluation notice requesting that it “[c]onfirm the 

percentage that was expensed as of 6 May 2009.” AR, Tab 9k. The offeror 

responded that this contract was for a construction project that was substantially 

completed and 98 percent expensed by May 6, 2009, and that the remaining contract 

value and period was only for groundwater sampling and report writing. AFCEE 

concluded that this response was acceptable, and evaluated the reference. Again, 

EQM asserts that the offeror was given an opportunity to modify its proposal, 

constituting discussions. 

The solicitation did not require offerors to affirmatively demonstrate that their past 

performance reference contracts were 80 percent expensed by the time the 

solicitation was issued. Instead, the solicitation stated that the “Government will 

consider only performance on an effort that is substantially complete [80 percent] or 

has been completed during the past three (3) years.” RFP § L, ¶ 5.4(c) (emphasis in 

original). In this context, we consider submission of a past performance reference 

by an offeror to amount to a representation that a contract that has not been 

completed, is substantially complete. Thus, the evaluation notices requesting 

offerors to confirm the percentage expensed were seeking nothing more than a 

confirmation that the references met the stated criteria, and did not present a 

opportunity for the offerors to modify any material aspect of their proposals. 

Accordingly, these exchanges did not constitute discussions as alleged by EQM. 

Conclusion 

In sum, we first conclude that the error in EQM’s proposal, either as alleged by EQM 

or as perceived by AFCEE, was not minor or clerical in its effect on the proposal, 

and could not be corrected through the clarifications process. Second, we have 

examined the record and find that the evaluation notices issued by AFCEE in this 

procurement, though numerous, did not constitute discussions, requiring the 

contracting officers to discuss deficiencies in the proposal of each offeror, including 

EQM. As such we see no basis to object to AFCEE’s conclusion that EQM’s proposal 

Page 8 B-402247.2 
Page 9 B-402247.2 

 

warranted a red/unacceptable rating under the corporate experience factor, and thus 

was ineligible for award.6 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

6

 EQM also challenged the agency’s evaluation of the management approach section 

of its proposal. Given our conclusions regarding EQM’s first three protest 

challenges, EQM was ineligible for award under this solicitation and, accordingly, we 

need not address this argument.