If a solicitation is ambiguous, protest sooner rather than later — Published September 21, 2012
If a solicitation is ambiguous, protest sooner rather than later
Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, September 21, 2012, 10:42am EDT – Last Modified: Friday, September 21, 2012, 6:56pm EDT
When contractors believe an agency’s solicitation is obviously ambiguous or contains a glaring error, it is better to seek a correction of the error before submission of the offer than to hope they correctly guess the meaning of the solicitation language.
Issue: The point at which a contractor must protest a solicitation it argues is patently ambiguous.
Decision: Denied by the Government Accountability Office, Sept. 17, 2012.
Postmortem: NCS protested an award to Intelligent Decisions Inc. of Ashburn and CDW-Government of Vernon Hills, Ill., for computer hardware and logistic support. The Marine Corps issued a solicitation for commercial-off-the-shelf computer components and logistic support, which included rugged computing equipment.
The solicitation informed potential offerers that the Marine Corps would award multiple task-order contracts for what eventually became 20 submodules and would issue two single-award contracts for two submodules that included the purchase of laptops and support for those laptops. NCS was awarded a task order contract for 20 modules and protested the award of the two single-award modules to Intelligent Decisions and CDW.
The solicitation informed offerers that that award would be made on a best-value basis after considering four evaluation factors, one of which was price. Price was evaluated using notional quantities, and the evaluation included Logistical Support Requirements (LSR) parts I and II for those notional quantities.
NCS argued that it was unreasonable for the Marine Corps to evaluate LSR parts I and II in the total evaluated price. The company said the the solicitation did not state “or even imply” that LSR prices would be part of the evaluated price. The Marine Corps disagreed and identified portions of the solicitation where it did indicate that LSR was mandatory and therefore it was only reasonable that if LSR were mandatory the evaluated price would include those requirements.
The GAO agreed. It found that an interpretation of the meaning of solicitation language “must be consistent with the solicitation when read as a whole and in a reasonable manner.”
In its discussion, the GAO reminded potential protestors of the difference between a latent ambiguity and a patent ambiguity in a solicitation. A patent ambiguity is one where “the solicitation contains an obvious, gross or glaring error,” while a latent ambiguity is “more subtle” and may not be identified until the evaluation.
The GAO found that the NCS position represented an argument that a patent ambiguity existed, and in the the event of a patent ambiguity the solicitation must be challenged “prior to the submission of proposals” to be considered a timely protest.
Many contractors confronted with a patent ambiguity believe that they will upset the evaluation team if they protest prior to the submissions of proposals and regardless of the outcome will not win the award. But if they do not protest and guess wrong, the GAO will dismiss any protest based on that ground as untimely.