Agency: Department of the Army, Army Corps of Engineers
Disposition: Protest Dismissed
Decided: May 5, 2021
Keywords: Pre-Award Protests, Timeliness Of Protest, Small Business Set-Aside, Ambiguity in Solicitation, Pre-Solicitation Notice
General Counsel P.C. Highlight:
Protest dismissed where an other-than-small business protester argued that the opportunity was not a small business set aside as the final solicitation did not state that the opportunity was restricted. The protestor argued that the agency cannot rely on information in the pre-solicitation notice to provide that information as it is extrinsic to the final solicitation. GAO dismissed this protest because any challenge to a patent solicitation ambiguity must be brought before the closing time of the solicitation for the protest to be timely under Bid Protest Regulation rules.
Summary of Facts:
M.R. Pittman Group, LLC (Pittman), of New Orleans, Louisiana protests the award of an Invitation for Sealed Bids IFB No. W912P8-20-B-0063, issued by the Department of the Army, Army Corps of Engineers, New Orleans District, to J. Star Enterprises, Inc., a small business in New Orleans, Louisiana. The award was for the inspection, removal, and repair of the pump units for Louisiana’s Wilkinson Canal Pump Station. Although Pittman submitted the lowest-priced bid, it did not receive the contract because it was an other-than-small business. Pittman challenges its non-selection by alleging that the IFB was not a small business set-aside.
On September 14, 2020, the agency issued a pre-solicitation notice on beta.SAM.gov of a contract opportunity for repair and maintenance services at the Wilkinson Canal Pump Station. The pre-solicitation notice identified the procurement as a total small business set-aside under the NAICS Code 811310. On December 21, 2020, the agency issued IFB No. W912P8-20-B-0063 seeking bids.
The IFB contained both FAR clause 52.219-6 (Notice of Total Small Business Set Aside) and FAR clause 52.219-14 (Limitations on Subcontracting). However, it did not identify the applicable North American Industry Classification System (NAICS) code or corresponding size standard for the intended small business set-aside, contrary to the FAR’s instructions for set-aside procurements.
On January 20, 2021, the agency received and opened four bids. Pittman’s bid was the lowest-priced bid, while J. Star had the third highest bid. On January 26, 2021, the contracting officer notified Pittman that it was ineligible for the award because it was other than small under NAICS code 811310. Pittman filed a protest at GAO.
Basis of Protest:
Pittman argues that the solicitation cannot be treated as a small business set-aside because the agency failed to include the required NAICS code and size standard information in the solicitation. Pittman argues that, since the pre-solicitation notice was extrinsic to the final solicitation, the final solicitation must have language in it that explicitly or at least precisely identifies the pre-solicitation notice in order for it to be incorporated into the final solicitation. Since the final solicitation makes no reference to the pre-solicitation notice, and the final solicitation controls, Pittman argues that the agency improperly relied on the pre-solicitation notice to provide the NAICS code and size standard information.
GAO first discussed the patent ambiguity of the IFB, stating that a patent solicitation ambiguity exists where the solicitation contains an obvious, gross, or glaring error. GAO found that the IFB was patently ambiguous about whether it was a small-business set-aside because it simultaneously incorporated applicable set-aside provisions but failed to provide an applicable NAICS code and corresponding size standard. GAO found that when an agency has indicated that a solicitation is to be a small business set-aside, the agency’s failure to check a box to indicate that the procurement is or is not such a set-aside does not permit potential bidders to assume that the procurement is not a set-aside. GAO stated that when a solicitation raises any questions or contains inconsistent provisions, any challenge must be raised prior to bid opening. As Pittman submitted a proposal under this ambiguous solicitation and failed to question the set-aside status of the solicitation, Pittman’s protest is untimely.
GAO explained that the Bid Protest Regulations’ rules specifically require protests based upon alleged improprieties that are apparent on the face of the solicitation to be filed before the proposal submission deadline. If the patent ambiguity is not challenged prior to the bid submission deadline, GAO will not consider subsequent untimely arguments asserting the protester’s own interpretation of the ambiguous provision. The ambiguity here that was apparent on the face of the solicitation was not raised by Pittman by the closing date of the IFB. Therefore, GAO found that the protester failed to timely challenge a patent ambiguity with the IFB’s terms and dismissed the protest.