Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Ambiguity in solicitation
General Counsel P.C. Highlight: When a dispute arises as to the actual meaning of solicitation language, the GAO resolves the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation, not just focusing on single provisions.
The Army Corps of Engineers issued a request for proposals (RFP) for the rehabilitation of sewers in the Metropolitan Sewer District (MSD) of St. Louis, Missouri. The RFP was issued as a small business set-aside and contemplated the award of a fixed-price contract to the firm submitting the lowest priced, technically acceptable proposal. The solicitation stated that the Corps intended to award the contract without conducting discussions, unless it was deemed to be in the best interest of the government to do so, and that, therefore, the initial proposals should include the offerors’ best terms form a price and technical standpoint. A clause from the Federal Acquisition Regulation (FAR) was also included, which stated that the government intended to conduct discussions with offerors whose proposals have been determined to be within the competitive range. The RFP also included instructions for preparing proposals that informed offerors that they should include a price proposal, and a copy of the MSD certification.
The Corps received four timely proposals, including one from Superior Gunite. The Superior Proposal included a price proposal and an MSD certification, but failed to include a technical proposal. Superior’s proposal was found to be technically unacceptable. Superior argued that the Corps had unreasonably found its proposal to be technically unacceptable because the RFP did not require offerors to submit a technical proposal as part of their initial proposal submissions. In its interpretation, Superior contends that it only required the submission of a price proposal and a current certification with the MSD, and that it would have an opportunity during discussions to demonstrate its technical acceptability.
When GAO reviews protests of alleged improper evaluations, it examines the record to determine whether the agency’s judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement statutes and regulations. As part of this review, GAO looks to see whether the solicitation’s provisions are definite and free from ambiguity, so that competition is permitted on a common basis. If a dispute arises as to the actual meaning of language in a solicitation, GAO resolves the matter by reading the solicitation as a whole to see whether it is susceptible to two or more reasonable interpretations, a determination that would find the solicitation to be ambiguous.
Here, GAO determined that the only reasonable interpretation of the RFP was that the offerors were required to submit technical proposals as part of their initial proposal submissions. The RFP provided that the Corps would evaluate the information submitted to determine if it is technically acceptable and meets the minimal requirements. The fact that the solicitation included the patent ambiguity related to the issue of whether it would conduct discussions did not relieve Superior of the responsibility to file a complete proposal. Because Superior’s proposal did not provide the technical information requested by the RFP, the agency reasonably found Superior’s proposal to be technically unacceptable, and Superior’s protest was denied.