Proposal Ambiguity Torpedoes Contractor’s Bid

Sometimes, unintentional ambiguities can lead to a few laughs.  One website, for instance, reports funny ambiguous newspaper headlines, such as “Kids Make Nutritious Snacks” and “Juvenile Court to Try Shooting Defendant.”

When it comes to bids and proposals, however, ambiguities are no laughing matter.  As one contractor discovered in a recent GAO bid protest decision, a procuring agency may reject a contractor’s bid if it contains an ambiguity regarding a material solicitation requirement.

The GAO’s decision in CHE Consulting, Inc., B-406639 (June 28, 2012), involved a National Oceanic and Atmospheric Administration request for quotes for computer maintenance services.  The RFQ called for the successful offeror to perform the required services from April 1, 2012 to March 31, 2012.  The deadline for submitting quotes was March 30, 2012–just two days before performance was to begin.

CHE Consulting, Inc. submitted the lowest-priced quote.  However, CHE’s quote included the following language: “Identifying the parts a customer requires to support their system platforms is the key to being successful. We accomplish parts identification through a thorough comprehensive on site systems platform audit prior to our contractual responsibility beginning.”  (The emphasis is mine).  Elsewhere in its quote, CHE wrote, “Contract Start Date: To be Determined (TBD),” though in another place it identified the appropriate period of performance.

Although CHE submitted the lowest-priced quote, NOAA rejected it, concluding that the quote was ambiguous with respect to the period of performance.  In NOAA’s eyes, CHE’s quote did not necessarily commit CHE to beginning its contractual responsibilities on April 1.  Instead, it appeared that CHE had conditioned its “contractual responsibility” upon the completion of its site systems platform audit, and offered no indication as to how long the audit might take.

CHE filed a GAO bid protest, alleging that NOAA had improperly rejected its quote.  CHE argued that it had unambiguously offered to perform the contract during the period of performance and was simply offering its audit as an additional service at no cost to the government.  CHE also argued that the audit would have taken no more than a day to perform, and would have been completed before the contract’s April 1 start date.

The GAO rejected these arguments, and denied CHE’s bid protest.  Based on the information provided in CHE’s quote, the GAO held that NOAA had reasonably determined that the quote was ambiguous as to whether CHE would begin performance on April 1.  The GAO wrote that, CHE’s post hoc contentions notwithstanding, “there was no basis to understand, from the information included in CHE’s quote, how long the protester’s proposed parts audit would take and, correspondingly, whether it could be completed in the time between when its quote was submitted and the RFQ’s contemplated start date for performance.”

The CHE Consulting GAO bid protest offers a good reminder that government contractors must carefully check and double check their proposals to guard against ambiguities.  If feasible, it may be helpful to have an employee or outside consultant who did not write the proposal–and thus, does not have preconceived notions of what the words mean–review it for potentially ambiguous language.  After all, some ambiguities can be humorous, but being excluded from a competition is not a joke.

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