Agency: Department of the Navy
Disposition: Protest Sustained
Decided: October 1, 2018
Keywords: Ambiguity in Solicitation
General Counsel P.C. Highlight: A latent ambiguity which allows two or more reasonable interpretations of the requirements of the RFP cannot later be held against one who relies on an interpretation inconsistent with the agency’s interpretation.
Summary of Facts
The Department of the Navy, Naval Air Systems Command (NAVAIR) Naval Air Warfare Center Aircraft Division issued a request for proposals (RFP) for program management technical support services. The RFP contemplated multiple indefinite-delivery, indefinite quantity (IDIQ) contracts, with a base year and four 1 year options. The statement of work required contractors supply personnel as needed. The solicitation indicated awards would be made to the 20 highest technically rated offerors who also offered fair and reasonable prices. Criteria was established for scoring the following factors:
- Relevant experience
- Past performance and
- Systems, certifications, and clearances.
Offerors were to self score their proposal in accordance with the solicitation’s evaluation criteria and provide documentation to support their scores.
Millennium obtained a self score of 6,375 points. However, the agency evaluated Millennium’s score as 5,975. This 400 point reduction in score resulted in Millennium not being one of the 20 highest offerors. Millennium filed a protest.
The 400 point difference is attributable to a single calculation. In scoring past performance, the RFP instructed offerors to convert adjectival ratings received on contract performance assessment reports (CPARs) into an average score. Past performance average scores between 3.5 and 3.74 were worth 400 points. Scores below 3.5 were not worth any points.
The RFP noted CPAR scores changed in 2014. The instructions stated, “Please utilize the categories that were rated in the CPARS you are claiming when calculating the past performance score for each project. The RFP listed the following Categories prior to 2014:
- Quality of product or service
- Cost control
- Business relations
- Management of key personnel
- Utilization of small business.
Current Categories were listed as:
- Technical / Quality of product or service
- Schedule / Timeliness
- Cost control
- Management or business relations
- Utilization of small business
- Regulatory compliance.
Millennium’s first reference included five of the evaluation categories identified as “current categories.” Additionally, Millennium’s CPAR report included another category, “travel / other direct costs.” With the inclusion of all six categories, Millennium’s score averaged 3.5. The Navy discounted the sixth category, resulting in an average score of less than 3.5. This accounts for the 400 point discrepancy.
Basis of Protest
Millennium quoted the RFP, which instructed offerors to use “the categories that were rated in the CPARS you are claiming when calculating the past performance score for each project.” It noted the RFP did not contain any language limiting the CPAR categories to only those listed in the RFP.
The Navy argued their evaluation was reasonable, as the language of the RFP was “clear and ambiguous, or, in the alternative, any ambiguity was so obvious it must have been protested prior to the deadline for proposal submissions.
The GAO stated their analysis begins with a plain reading of the solicitation. Where the language is unambiguous, no further analysis is required. However, when two or more reasonable interpretations of the solicitation are possible, the GAO will inquire further. The GAO notes where a solicitation’s provisions are inconsistent on their face, this is a patent ambiguity. However, where the provisions are susceptible to different but both reasonable explanations, a latent ambiguity is present.
In reviewing the language and the positions of the parties, the GAO finds neither the Navy’s interpretation nor Millennium’s interpretation is unreasonable. Both acted in a manner consistent with their stated interpretations of the language of the RFP. GAO finds the language is not obviously inconsistent, and that both interpretations make sense, despite the fact they are inconsistent with each other. While the Navy may have intended to limit past performance scores to those CPAR categories listed, nothing in the RFP specifically limited offerors to those categories.
While the Navy argues the offerors should have known its intent, the GAO does not agree. The GAO points to other language which supports Millennium’s position that any CPAR category could be included in the average.
As such, because both parties provide alternative reasonable interpretations, the GAO recommended the Navy reevaluate Millennium’s proposal, using Millennium’s interpretation. Should this result in a score that is at or above the lowest offer which was in the top 21 and also reasonably priced, the GAO recommended the agency make an additional award to Millennium.