#GovConThoughts: A Spreadsheet Typo May Sometimes Require Clarifications
[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]
A recent COFC decision in Aspire Therapy Services & Consultants, Inc. v. United States is welcome news for contractors facing the dreaded typographical error in spreadsheets and shows how "minor clerical errors" may sometimes require clarifications.
In this pre-award protest, the protester challenged its elimination due to a 30-hour error in its spreadsheets – mismatched labor hours of 2,336 and 2,366 due to a typo elsewhere. The protester argued the agency abused its discretion by not conducting clarifications. The agency's position was (1) the mismatch was not a minor clerical error, and (2) it was required to reject the proposal because of the solicitation. COFC did not bite.
First, COFC noted that the FAR allows clarifications: "offerors may be given the opportunity to clarify certain aspects of proposals (e.g., 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.” FAR 15.306(a)(2).
COFC then analyzed prior caselaw (Fed. Cir. and other COFC decisions), which ultimately supported its decision that the "labor hours [mismatch] was a minor clerical error that could be corrected through clarification" and that "DeCA’s decision to disqualify Aspire was thus arbitrary and capricious in that regard."
Here, the typo was simple and could be "confirmed with virtual certainty by reviewing the formulas in the native" spreadsheets. Instead of entering 81 hours as the fifth number in a formula (which mapped to an RSHA Coverage subcategory), the protester instead typed 51. This typo is what created the "30-hour discrepancy in RSHA direct labor hours between the spreadsheets [i.e., 2,336 vs. 2,366]." In other words, had the protester typed 81 instead of 51, the labor hours would have matched. COFC found that this obvious typo/error "supports the conclusion that the error was minor and clerical and thus subject to clarification."
As for the agency's position that the solicitation supported its decision, COFC was ultimately unpersuaded and found that the agency "failed to meaningfully explain a substantive purpose for its content and format instructions that would render clarification improper in this case."
Finally, in holding that the agency abused its discretion by not engaging in clarifications, COFC noted that there is "no bright line rule or legal test." COFC recognized that, given agency discretion (i.e., "offerors may be given the opportunity to clarify"), the analysis is highly fact-intensive and case-specific. COFC said that several factors have led other courts to conclude that an agency’s decision to forgo clarifications amounted to an abuse of discretion, and ultimately found that those factors were present here.
Takeaway
The decision is lengthy and provides a roadmap for contractors that are rejected for a spreadsheet typo or for something that is a "minor clerical error." As with all cases, there is nuance, but this decision is welcome news.
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