It is not uncommon for a disappointed bidder to consider filing a protest only after the agency has issued the award. While this is understandable, sometimes the basis for protesting stems from a misunderstanding of the solicitation’s terms, or that the terms felt unreasonably restrictive. However, unfortunately for the eager protester, it is by that point generally too late to challenge the terms of the solicitation.
In a previous blog, Why File: A GAO Pre-Award Protest, we provided an overview of different reasons to file a pre-award protest. As noted there, the most common basis for a pre-award protest is a challenge to the solicitation terms.
If a solicitation’s terms are unclear or inconsistent, offerors may submit proposals that fail to meet the agency’s expectations. But once the deadline for proposals has passed, it is too late for a disappointed bidder to argue that the solicitation was unclear (with the exception for latent ambiguities). GAO’s timeliness rules require that apparent defects in a solicitation be challenged before proposals are due, as reiterated in our previous blog, Timing is Everything: GAO Dismisses Post-Bid Protest of Solicitation Terms as Untimely. Thus, the ability to identify when challenging the solicitation terms is warranted can be helpful for any offeror.
The Common Grounds for Challenging Solicitation Terms
- Ambiguous or Inconsistent Terms
A common reason to challenge the terms is where they are ambiguous. An ambiguity exists where a solicitation on its face can reasonably be interpreted in more than one way. By including terms that could be reasonably interpreted differently than the agency intended, offerors may be misled in preparing their proposals. Further, inconsistencies in the terms could affect the overall fairness of the procurement process.
For example, in Selex ES, Inc., B-420799, GAO sustained a pre-award protest where the solicitation seemed to require certain verifications at the time of proposal submission, while another section indicated those same verifications would only be required after award during contract performance. An inconsistency like the one here could play a significant role in a bidder’s ability to satisfy the terms of the solicitation. Similarly, GAO has addressed solicitations that included language supporting a lowest-price technical acceptable (LPTA) evaluation, while also suggesting it was a best-value tradeoff evaluation.
But, what about situations where the ambiguity only reveals itself after awards are made? Such latent ambiguities (as GAO describes them) arise where the terms are ambiguous, but it is not reasonable for the protester to realize such until after the fact. This is opposed to a patent ambiguity where the protester knows or should have known the terms are ambiguous and thus inquired on the same. In the case of latent ambiguities, a protest after award is viable, as seen in Coastal International Security, Inc., B-411756, B-411756.2, but whether such terms are latently or patently ambiguous is very fact-dependent.
- Unduly Restrictive Terms
A solicitation may also be challenged if its requirements are unduly restrictive of competition. While agencies are permitted to draft requirements that reflect the needs for the procurement, agencies cannot impose unreasonable requirements that would unnecessarily limit competition.
For instance, in a prior decision discussed here, GAO considered a solicitation requiring small business joint ventures to obtain a facility security clearance in the name of the joint venture entity itself. Even if the individual members of the joint venture already had the facility security clearance, the agency noted this was insufficient. The joint venture itself was required to obtain clearance. GAO found this requirement unduly restrictive for joint venture offerors to obtain when the members themselves held the required security clearance, as the restriction did not benefit the competition or government in any way.
It should be noted that the agency only needs to show it has a legitimate reason for such restrictive terms for it to succeed. The mere fact that a requirement is too restrictive does not mean that it is unduly restrictive. For example, an agency may say that it will only accept products with certain specifications if it can show such specifications are reasonable for its aims. Such a requirement would likely not be found unduly restrictive.
Additionally, if a solicitation imposes requirements that are inconsistent with industry norms, offerors may have grounds to challenge these terms as unduly restrictive if the agency lacks reasonable justification for the restrictive terms.
What is Required to Challenge Solicitation Terms
Before challenging the solicitation terms in a pre-award protest, there are two requirements the potential protester must satisfy: Interested party status and timeliness.
A prospective bidder is an interested party if the bidder has expressed interest in competing and has a direct economic interest. Typically, the prospective or actual bidder must be eligible for award. GAO has held that “a protester is not an interested party to challenge the terms of a solicitation, even if the protest is sustained, if it is clear that the protester will be ineligible for award under the remaining terms of the solicitation.” DGCI Corp., B-418494 (Comp. Gen. Apr. 27, 2020).
Timeliness
When the protest is based upon “alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals,” the protest must be filed “prior to bid opening or the time set for receipt of initial proposal.” 4 C.F.R. § 21.2(a)(1).
If the term on its face is ambiguous, a protester cannot wait until after award to raise the issue. Challenging ambiguous or unduly restrictive terms can be an effective tool for prospective bidders. But knowing what to look for in the solicitation before it’s too late is the key to successfully challenging the solicitation terms.
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