GAO Denies Challenge to Solicitation Terms: Use of “Tactical” Was Imprecise, but Allowable

In the world of federal contracting, precision matters. In fact, precision is often essential when developing a winning proposal. When it comes to subjective evaluation considerations, however, it can be challenging to articulate relevant evaluation criteria with a high level of precision. Indeed, as one prospective offeror recently discovered, some evaluation terms are good enough for government work, despite being imprecise.

Federal Acquisition Services Team OASIS JV, LLC, B-418776 (Comp. Gen. July 24, 2020), involved a Cybersecurity and Infrastructure Security Agency procurement for budget, acquisition, and contract management support services. The solicitation was issued as a task order under GSA’s One Acquisition Solution for Integrated Services (“OASIS”) government wide acquisition contract.

Federal Acquisition Services Team (“FAST”) is an OASIS contract holder and was interested in submitting a bid in response to the task order. After reviewing the task order solicitation’s terms, however, FAST identified various evaluation provisions that it believed were ambiguous, which would hinder its ability to develop a competitive proposal.

While FAST took issue with a number of the Solicitation’s provisions, we’ll focus on FAST’s challenges to the past performance evaluation factors.

As relevant to FAST’s protest, the Solicitation instructed offerors to provide up to two examples of past performance. One example was to demonstrate an offeror’s ability to manage a procurement project through all acquisition phases. The other example was to demonstrate experience using innovative procurement methods.

With respect to the procurement management factor, the Solicitation explained that competitors would be evaluated on their “[d]epth and breadth of expertise and knowledge in the federal procurement process at the tactical level, which includes the Quoter’s ability to support a customer in the execution [of] a procurement from acquisition planning to contract award while applying all required internal and external federal regulations, agency policies and processes.” The Solicitation never elaborated on what constituted “tactical level” procurement processes.

The solicitation provided a similarly elaborate description of considerations for the innovative procurement methods evaluation factor. Specifically, past performance examples supporting this evaluation consideration would be evaluated as follows:

Quoter’s demonstrated experience in using innovative procurement methods that incorporates the latest procurement[] trends to streamline actions that result in rapid, flexible, and agile procurements to allow [the agency] to “transcend beyond [the] status quo” or go beyond using traditional/routine procurement tools and methodologies and advance to innovate and sustainable approaches appropriate to support high tempo cyber and technology centric environments similar to the space in which [the agency] operates.

Like the procurement management factor, the innovative procurement methods factor did not elaborate on what procurement processes would “transcend beyond the status quo.”

In its protest, FAST alleged that the evaluation considerations for both the procurement management and innovative procurement methods factors were ambiguous. According to FAST, a number of phrases used in the evaluation procedures were not generally recognized terms of art, which resulted in the evaluation considerations being ambiguous.

With respect to the procurement management factor, GAO summarized that “FAST argues that the phrase ‘at the tactical level’ is ambiguous because the term is nonsensical, as it is neither a term of art nor commonly understood.” FAST raised similar challenges to the language of the innovative procurement methods factor. As GAO summarized, “FAST argues that this evaluation criterion is vague because the phrase ‘transcend beyond [the] status quo’ is nonsensical, and because the agency does not identify what constitutes traditional/routine procurement tools.”

GAO, however, took a different view of the solicitation’s past performance evaluation descriptions. Responding to FAST’s challenge of the procurement management factor, GAO explained that “[a]lthough we view the RFQ’s use of the word ‘tactical’ as imprecise, we do not conclude that the phrase will prevent vendors from competing on an equal basis.” GAO was similarly unreceptive to FAST’s challenge of the innovative procurements methods factor. According to GAO, “[a]lthough FAST complains that the phrase ‘transcend beyond [the] status quo’ is nonsensical, we disagree because the phrase adequately conveys that a vendor will be evaluated based on whether its quotation demonstrates innovative procurement tools.” Consequently, GAO denied FAST’s protest.

GAO’s decision in Federal Acquisition Services Team seems to recognize one of the truths of language—you can communicate intent without perfect precision. Here, the agency provided offerors with sufficient information to ascertain the intent of its past performance evaluation. While there may have been more precise ways to describe the agency’s evaluation procedures, such exacting precision was not required for offerors to generally understand that the agency would be evaluating.

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