On December 7, 2012, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) issued its first decision determining that government contractors need to challenge any obvious errors, improprieties, or ambiguities on the face of a solicitation amendment before award (extending its previous rule that such challenges to the initial solicitation generally must be challenged before award). In COMINT Systems Corp. & Eyeit.com, Inc., JV v. United States, the Federal Circuit found that Comint missed an opportunity to challenge an obvious – or patent – error in an amendment to the solicitation. By signing the amendment and waiting until after award to protest the allegedly problematic amendment, the government contractor waived any right to challenge the terms of the amendment to the solicitation.
On August 2, 2010, the Department of Defense (“DOD”) had issued the solicitation intending to award multiple indefinite delivery/indefinite quantity contracts for help desk, server, network, and applications support services – Net-Centric Integrated Enterprise Information Technology Services. Initially, the solicitation had requested proposals for the “Basic Contract” and for the first two task orders under the contract. After offerors had submitted their proposals, however, DOD amended the solicitation on January 19, 2011. Instead of evaluating the first two task orders for award, DOD informed offerors that the information and pricing for these two task orders would now be used as “sample tasks” in the evaluation of pricing of the Basic Contract. DOD’s amendment to the solicitation also prominently announced that DOD would “NOT accept any revisions to the proposals.” On January 20, 2011, Comint signed the amendment and returned it to DOD one day after receiving it without complaint.
DOD evaluated Comint’s and the other offerors’ proposals, but eliminated Comint from the competition based in part on Comint’s “incorrect assumption” in pricing sample task 1 (which had previously been a standalone task order prior to the solicitation amendment, but now was part of the price factor for the Basic Contract award). On April 6, 2011, DOD awarded contracts to several offerors, but not Comint. Comint protested the award to the agency and then at the U.S. Court of Federal Claims (“CFC”), asserting that the solicitation amendment was improper. The CFC dismissed the protest and Comint appealed to the Federal Circuit.
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