Government Contracts Monitor

Clarify Ambiguities or Face the Consequences

September 30, 2014

Crafting winning proposals can be a tricky business, even when you think you understand the requirements set forth in the solicitation. The recent decision by the Government Accountability Office (GAO) in VSE Corporation, B-408936.5 (August 25, 2014), serves as a reminder that, if there is any ambiguity at all, it’s always better to ask questions and clarify your understanding than to pick one interpretation and run with it.

VSE involved a General Services Administration (GSA) procurement under the agency’s One Acquisition Solution for Integrated Services (OASIS) program. The request for proposals (RFP) provided for the award of up to 240 indefinite-delivery, indefinite-quantity (IDIQ) contracts, under which federal agencies could issue task orders for any of six “core disciplines” of professional services. Awards were to be made to the highest technically-rated offerors with fair and reasonable prices, considering the following five factors: responsibility; relevant experience; past performance; systems, certifications, and clearances; and price.

In order to better manage the processing and evaluation of the expected large numbers of proposals, the GSA established stringent proposal requirements and a multi-phase evaluation process under which offerors self-scored their proposals using the a point scoring table. The initial agency screening involved simply checking whether each offeror had provided the documents identified in its proposal checklist, and whether those documents corresponded to the offeror’s self-scoring worksheet.

The RFP required offerors to submit five completed or current relevant experience “projects” meeting specified annual project values. For each relevant experience project, offerors could claim an increasing number of points for a project’s dollar value, number of OASIS core disciplines performed, and performance in multiple or OCONUS locations, among other things. The RFP stated that “one of the five primary relevant experience projects may, at the offeror’s discretion, be a collection of task orders placed under a single award IDIQ task order contract or under a single-award BPA, and that a collection of task orders as a whole would be considered a single project.”

VSE’s proposal identified five projects, two of which were stand-alone IDIQ contracts for which VSE submitted multiple delivery orders to demonstrate its performance of various OASIS core disciplines and performance of services in OCONUS locations. VSE awarded itself points on the self-scoring sheet based on the content of the “delivery order” examples under these two IDIQ contracts.

The contracting officer rejected VSE’s proposal during the initial screening because VSE had submitted two collections of task orders placed under two separate single-award IDIQ contracts when the RFP allowed only one such submission. VSE protested, arguing that “each project was a ‘stand-alone,’ single-award contract that provided for ‘case assignments’ (issued as delivery orders) for foreign military sales,” and asserting that delivery orders are not the same as task orders and, therefore, not limited by the RFP.

In response, the GSA pointed out that, since the IDIQ contract by itself did not have an actual value for which VSE could claim experience points, VSE could not have properly claimed many of the points that it claimed for each project without also counting the underlying orders. GSA also argued that, despite their label, the “delivery orders” in question were actually “task orders” because they involved the provision of services rather than supplies.

The GAO agreed on both points, finding the GSA reasonably determined that VSE failed to identify five projects in its proposals, as required by the solicitation. Tellingly, GAO also pointed out that, “[t]o the extent that VSE did not understand the RFP’s instructions for submitting relevant experience projects,” it had ample opportunity to clarify the matter.

Therein lies the moral of this story: when there is any ambiguity about what is required or whether your intended proposal approach will comply with the RFP, ask questions – prior to the bid or proposal submission deadline – to clarify. In this context, having a good argument in support of your interpretation is not sufficient. If the ambiguity is not clarified, the fate of the proposal is left to the agency’s reasonable interpretation, which may differ from yours – and require rejection of your proposal.