Government Contracts Monitor

Make Sure Your Interpretation of the RFP Takes All the RFP Language into Account

October 26, 2015

By: Eric Whytsell

Whether preparing proposals or contemplating a protest, offerors sometimes fall into the trap of reading the solicitation’s requirements with a slant that favors the offeror’s proposed solution. It’s all too easy to focus on the solicitation language that readily aligns with the offeror’s proposal – and ignore other portions of the requirements that do not fit as well. The recent decision in C&S Corporation, B-411725 (October 7, 2015) shows the danger of crafting a proposal or filing a protest that does not take all of the solicitation language into account.

The case involved an Army procurement of security guard services. The request for proposals (RFP) anticipated a fixed-price Contract to be awarded on a lowest-priced, technically-acceptable basis, considering (1) technical capability, (2) management approach, (3) past performance, and (4) price. As relevant here, one of the technical capability subfactors was the prime contractor’s corporate experience, in connection with which the RFP required the offeror to provide “verifiable information demonstrating that the prime contractor has a minimum of two (2) years of experience in security guard services in [the Republic of Korea] with relevant experience in installation or facilities (military or non-military) access control and management of security guard forces totaling 500 or more security guards during a single time period.” The solicitation went on to explain that [a]n installation is a grouping of facilities located in the same vicinity that support particular functions . . . .”

The Army received proposals from six offerors, including the awardee, KF&S Corporation, and C&S Corporation, both of Seoul, Korea. Both C&S and KF&S were rated acceptable under all evaluation factors and subfactors, but because KF&S’s proposal was the lowest-priced, the Army awarded the contract to that firm. In response, C&S filed this protest, arguing in part that the agency should have found KF&S’ proposal technically unacceptable because the awardee failed to satisfy the prime contractor’s experience requirements under the second technical capability subfactor.

More particularly, C&S argued that the RFP description of the corporate experience subfactor precluded an offeror from demonstrating the requisite experience at “facilities which are scattered throughout Korea.” C&S’ position was based on an interpretation of the subfactor as requiring offerors to rely solely on experience “at grouping of facilities located in the same vicinity that support particular functions”, based on the RFP’s definition of “installation”. Unfortunately for C&S, the solicitation language expressly allowed a demonstration of “experience in installation or facility access control and management of security guard forces” (emphasis added).

The Government Accountability Office (GAO) explained that its approach when a protester and agency disagree over the meaning of solicitation language is to “resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner.” Applying that standard here, the GAO agreed with the Army that the RFP provided that qualifying corporate experience was not limited to that provided on an “installation, but also included experience obtained on “facilities.” The GAO also rejected C&S’ contention that the RFP’s definition of “installation” as a “grouping of facilities” meant that all facilities had to be on an installation, noting that C&S’ interpretation would require reading the phrase “or facilities” out of the RFP. Since the agency’s position instead gave effect to all the RFP language, the GAO found it reasonable and denied C&S’ protest on this issue.

Obviously, it is vitally important for contractors to avoid the sort of “aspirational” RFP interpretation that bedeviled C&S in this case. Of course, doing so is often easier said than done. Sometimes, simply seeking clarification from the agency is the easiest and most effective approach. But contractors also need to spread their RFP interpretation at all stages among multiple readers with different perspectives -- and to consciously pursue an objective analysis of all the language of the RFP. “Tiger teams” and other means of intentionally challenging the “accepted” (i.e., easiest and most favorable) interpretation can be very useful in this regard. It is much better to invest the necessary time and effort up front to get to an accurate understanding of solicitation requirements, favorable or not, than to spend significantly more time, effort and money later in an attempt to clean up the mess resulting from a misinterpretation.

Attorneys