If a Solicitation Ambiguity Doesn’t Become Apparent until Evaluation of Proposals, It’s Latent – and Fair Game for a Post-Award Protest
February 22, 2016
By: Eric Whytsell
One of the reasons it’s so important to read solicitations carefully is that such review can help you identify any ambiguities before submitting your proposal. If the ambiguity is obvious, or “patent”, you must protest it before the proposal due date or not at all. In other words, an offeror can’t wait to see who wins the contract before deciding to gripe about an ambiguity that may have hurt its chances. However, as the recent decision in RELI Group, Inc., B-412380 (January 28, 2016), demonstrates, sometimes the ambiguity is “latent” and can be the subject of a post-award protest.
The procurement in this matter involved a request for proposals (RFP) issued by the Food and Drug Administration (FDA) for operations and maintenance, and development modernization and enhancement support, for an FDA portal. The relevant portion of the RFP provided: “The offeror shall provide information about three (3) projects . . . . The offeror shall describe its current and past experience . . . including its degree of involvement (at least 2 out of the 3 projects the offeror must be the prime) . . . .” The solicitation also provided a list of instructions concerning the information that was to be submitted for each project, including, as relevant here, the following statement: “The list may include contracts/order [sic] on which the offeror served as a subcontractor, provided that the subcontractor [sic] was similar in scope, duration, and price to this effort.”
This potentially ambiguous combination of statements prompted various questions from offerors, including a request that the agency “confirm that subcontractor past performance [was] acceptable as part of our submission of 3 projects.” The FDA responded by amending the RFP to add the following language: “A maximum of 2 of 3 past performances may be for the sub-contractor. A minimum of 1 past performance shall be for the prime contractor. Only 3 past performance questionnaires will be accepted by the Government.” Less than a week before proposals were due, RELI Group, Inc. (RELI) took note of this amended instruction concerning the submission of past performance references, and asked the agency to confirm that the RFP’s instruction regarding relevant experience submissions “also allows for a maximum 2 of the 3 relevant projects [to] be for the Offeror’s subcontractor.” The agency did not respond.
Rather than protesting, RELI chose to submit a proposal that listed, as relevant experience, one contract performed by RELI as a subcontractor to another firm, and two contracts performed by RELI’s proposed subcontractor in the role of prime contractor, and provided the corresponding past performance questionnaires. Both of RELI’s subcontractor’s relevant experience projects referenced its work as a prime contractor for the same type of requirements sought by the RFP.
During the agency’s evaluation of technical proposals, the evaluation team found the instructions for the relevant experience technical factor to be so unclear that they sought additional guidance. Specifically, they thought the instructions were unclear as to whether two of the three relevant experience submissions had to be for the main offeror, without regard to the role in which the main offeror performed the past effort; or for the main offeror, performing solely in prime contractor capacity.
Since the current contract was about to expire, the contracting officer (CO) decided not to amend the RFP to clarify the matter (which would have required giving the offerors additional time to respond to any revised instructions). Instead, the CO announced that the “most generous interpretation” of the instructions was as follows: two of the three relevant experience examples had to be from the main offeror, and, since offerors were instructed to submit no more than three relevant experience examples, only one relevant experience submitted for a subcontractor would be evaluated. Following the CO’s direction, the evaluation team considered only one of the experience examples submitted for RELI’s subcontractor, and refused to consider the other “because [RELI] did not comply with the solicitation instructions.” RELI was assigned a “marginal” rating for relevant experience, and the contract was awarded to DSFederal, Inc.
After receiving a debriefing, RELI protested, arguing that FDA’s evaluation of its proposal under the relevant experience factor was unreasonable and inconsistent with the terms of the RFP because the agency construed the instructions to permit only one reference to show a subcontractor’s relevant experience, and to require that two of the references be for the prime contractor. In contrast, RELI contended that the solicitation permitted two of the three required experience submissions to be for contracts performed by the subcontractor(s), and required one to be for the prime contractor. In response, FDA argued that RELI’s proposed interpretation was, at best, based on a patent ambiguity, and, therefore, the protest should be dismissed as untimely.
The Government Accountability Office (GAO) disagreed, explaining that a “patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle.” Here, the lack of guidance in the RFP with respect to the meaning of “prime” and “subcontractor” clearly permitted the solicitation to be interpreted in at least two reasonable ways, thereby creating an ambiguity. However, despite being advised of RELI’s interpretation of the relevant clauses through a question RELI submitted, FDA only realized that the RFP’s instructions were unclear during the course of evaluations that took place more than a month after proposals had been submitted. According to the GAO, “[s]ince the ambiguity only came to light in the context of the agency’s evaluation of relevant experience, we conclude that the ambiguity was not obvious or glaring--in short, it was latent rather than patent and RELI’s protest of this issue thus is timely.”
The GAO sustains protests where a latent ambiguity has prevented the offerors from competing intelligently on a relatively equal basis. Here, the GAO found the FDA’s refusal to modify the RFP once it discovered the ambiguity effectively precluded offerors from competing intelligently and on a relatively equal basis – and competitively prejudiced RELI. The GAO sustained the protest and recommended that the agency amend the RFP to accurately reflect its desired approach to the evaluation of relevant experience and past performance risk, and allow the submission of revised proposals. It also awarded RELI its costs, including attorneys’ fees.
If the evaluation team had not been stymied by a previously unrecognized ambiguity, this protest might have come out differently. As it is, however, the decision stands as a good reminder to be on the lookout for late-blooming ambiguities. If they don’t arise until the evaluation (or you don’t learn about them until the debriefing), they may be latent so that you can protest them.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2016