Matter of Selex ES, Inc.
Decided: September 6, 2022
Agency: Department of the Air Force
Disposition: Protest Sustained
Pre-award protests challenging the ambiguity of requirements in a solicitation are critical to ensuring fair competition. Even when underlying requirements are not in dispute, as was the case here, ambiguities in the solicitation could disqualify best value offerors. Additionally, a protester’s recovery of legal fees, as GAO recommended here, while not guaranteed, may be a critical factor in assessing the risks associated with filing a pre-award protest. If you were involved in a bid and feel the solicitation was similarly ambiguous, you may have similar grounds for a protest.
Companies should thoroughly evaluate the potential for success with any protest situation. The time, expense, and negative consequences associated with challenging your Government customer warrants a strategic evaluation between your executive leadership, capture, proposal, and legal teams. General Counsel has the experience and drive to assist clients with assessing award decisions, developing legal courses of action, filing either as an unsuccessful bid protestor or the awardee intervenor, litigating the protest, and developing post-decision lessons learned for more effective future business development practices.
Summary of Facts
Selex ES, Inc. challenges the terms of a solicitation under RFP No. FA8102-22-R-0003, issued by the Department of the Air Force for development of a portable tactical air navigation system. The RFP was issued on May 3, 2022 and contemplated award would be made on a best-value tradeoff basis, considering the multiple evaluation factors. The RFP required offerors to perform a successful flight check and meet Technology Readiness Level 8 and Manufacturing Readiness Level 9 requirements.
After the issuance of the solicitation, Selex contacted the agency to express its concerns that it was unclear whether the flight check requirement was due at the time of proposal submission or after award, and Selex requested the RFP be revised to provide clarity. The agency responded that it would not amend the solicitation because it believed the RFP language was clear. Prior to the due date for proposal submissions, Selex filed this Protest.
Basis of Protest
Selex argues that the terms of the solicitation are unduly restrictive of competition because they can be reasonably interpreted as requiring offerors to meet the navigation system’s flight check qualification and readiness level requirements at the time of proposal submission, rather than after award during performance of the contract. Selex contends that performing a successful flight check and obtaining certain readiness levels do not become relevant until after award, therefore the requirements are not necessary to meet the agency’s need at the time of proposal submission. The agency argues that the solicitation does not require offerors to meet the flight check requirements at the time of proposal submission, but rather, they are due after award.
Key to the protest at issue is the parties’ differing understanding of whether the solicitation requirements at issue are due at the time of proposal submission or after award. Where a dispute exists as to a solicitation’s actual requirements, GAO begins by examining the plain language of the solicitation. GAO explained that it resolves questions of solicitation interpretation by reading the solicitation as a whole and in a manner that gives effect to all provisions. An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible.
Here, GAO found the statement of work and the RFP’s evaluation scheme support the agency’s position that the terms at issue are not required prior to award. Specifically, the Technical Requirements section indicated that requirements should be met “by the required delivery date for the first unit.” GAO determined that it “cannot find the agency’s interpretation inherently unreasonable.” GAO noted that Selex’s interpretation that the requirements at issue are due at the time of proposal submission is also supported by provisions in the RFP, specifically in the systems requirements document. Additionally, the requirements verification matrix lists the flight check as being due at the time of proposal submission. Thus, GAO held it couldn’t find Selex’s interpretation unreasonable.
GAO concluded that the RFP contains obvious conflicting information that creates an ambiguity as to whether the flight check and readiness level requirements are due at the time of proposal submission or after award. Based on the discrepancies in the solicitation, GAO determined that both the agency and Selex had reasonable interpretations of due dates for the requirements at issue. GAO sustained the protest and recommended Selex be reimbursed its costs of filing and pursuing the protest, including reasonable attorneys’ fees.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.