Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
It is well-known that protest deadlines are strict: Protests involving the solicitation must be received before the due date for proposals, and those involving the award must be received within10 days of the agency’s decision. Deciding whether or not to protest in the case of the former, however, is less cut and dry.
Protesting contractor: Qwest Government Services Inc., Arlington
Contracting agency: Department of Interior
Issue: Whether or not the winning proposal complied with the solicitation requirements.
GAO decision, December 9, 2011 (Reconsideration decision released July 23, 2012): Denied.
Post-mortem: Qwest alleged numerous grounds in its most recent of a string of protest involving this contract, including claims that the Department of Interior’s evaluation of the technical and price proposals for both it and winner Verizon were unreasonable. But one argument in particular provides some insight into protest procedures, and a lesson for potential protestors.
In its solicitation, the DOI informed offerors that a particular pricing table was required. Qwest used 10 pages of its 25-page limit to describe this particular table. Verizon on the other hand did not include this table or any description of it in its pricing narrative. It did, however, include the information in another section of its proposal. Qwest argued that failure to include this table in its pricing narrative made Verizon’s offer unacceptable.
The GAO found that the solicitation’s instructions contained a “patent ambiguity” – defined as an obvious, gross or glaring error – and therefore should have been protested prior to submission of a proposal. Any later, GAO decided, is untimely.
This is a common and perplexing decision that contractors often are forced to make while preparing their proposals: Should they chance angering a contracting officer and protesting what appears to be an ambiguity, potentially influencing the contracting officer to award the contract to another bidder, or should they wait and hope that it doesn’t affect award of the contract? It’s a tough position for a contractor to be in.
What is a certainty, though, is if a contractor decides to wait until after the award to protest issues with the solicitation, no matter how meritorious their allegations, the protest will be dismissed.