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Corrective Action Taken by Agency Comptroller General - Key Excerpts Contracting officers in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. The Matthews Group, Inc.
As a general matter, the details of a corrective action are within the sound discretion and judgment of the contracting agency.
Where the agency has reasonable concern that there were errors in the procurement, we view it as within the agency's discretion to take corrective action where the agency made the decision in good faith. Where an agency has reasonable concerns that there were errors in the procurement, corrective action may appropriately include reopening discussions and requesting revised proposals before reevaluating.
As noted, the RFTOP instructed offerors to provide a fully burdened labor rate for all the labor categories listed on the price matrix and stated that the burdened rates "shall include all direct, indirect, general and administrative costs and profit associated with the Labor Category. In response to multiple questions, the agency repeatedly declined to specify the allowances for OCONUS personnel that offerors should include in their fully burdened labor rates.
In response to these questions, the agency repeatedly declined to provide plug values or definitions.
For example, in response to the final question on the subject, the agency stated: The [agency] will not provide plug numbers or additional guidance related to recruitment and retention pay, cost of living adjustments, country specific sponsorship requirements, hardship pay, danger pay, discretionary spending allowances, [housing] allowances, etc….
These costs should be incorporated into the offeror's loaded labor rates. These values are for evaluation purposes only and are not to be changed. The Government provided surrogate numbers are inclusive of any Offeror's applicable indirect rate adders. Government civilians assigned to foreign areas.
Contractor civilians assigned to foreign areas may receive allowances and benefits up to those set forth in the DSSR, but shall not receive allowances and benefits in excess of those identified in the DSSR.
An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle.
Where there is a latent ambiguity, more than one interpretation of the provision may be reasonable, and the appropriate course of action is to clarify the requirement and afford offerors an opportunity to submit proposals based on the clarified requirement.
Amendment 13 provided some guidance about certain costs that should have been included in the offeror's loaded labor rates. Prior to amendment 14, an offeror could have reasonably interpreted the ODC CLINs to allow the inclusion of certain costs based on its standard practice and experience that the agency otherwise intended offerors to include in their fully burdened rates.
Accordingly, we agree with the agency that the RFTOP contained a latent ambiguity and find reasonable the agency's decision to amend the RFTOP to provide the missing information to allow offerors to intelligently prepare their proposals. We also find no merit in the protester's argument that the agency was not required to reopen discussions with Serco because the procurement is a task order competition.
Where, as here, an agency conducts a task order competition as a negotiated procurement, our analysis regarding fairness will, in large part, reflect the standards applicable to negotiated procurements.
In this regard, discussions, when conducted, must be meaningful. Here, the record shows that Serco's initial and final price proposal included statements regarding certain costs for which it expected to be reimbursed under the ODC CLINs that were not included in its fully burdened labor rates.EMLYON is a leading international and european business school in France.
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