Solicitation Ambiguities: Speak Now, or Forever Hold Your Peace

When a federal solicitation is vague, ambiguous or internally contradictory, it is common for offerors to hold their tongues. Instead of challenging the solicitation’s defects before proposals are due, many offerors decide to submit proposals and “see how it plays out.” Later, if the award goes to a competitor, these offerors may try to protest the solicitation’s defects.

It’s unsurprising that offerors can be reticent to rock the boat before an award is made. But a recent GAO bid protest decision demonstrates, complaining about the ground rules after award rarely works.

The GAO’s decision in One Community Auto, LLC, B-419311 (Dec. 16, 2020) involved an Army RFQ to purchase cars meeting certain specifications for use at Fort Leonard Wood, Missouri. The RFQ said that the Army would award the contract on a “best value” basis considering three factors: technical merit, past performance and price.

The RFQ stated that technical merit was more important than past performance, which in turn was more important than price. However, the RFQ also stated that technical merit and past performance, combined, “are NOT more important than price.” With regard to price, the RFQ stated only that responses would be evaluated to ensure that the price was fair and reasonable. The RFQ did not explain how technical merit and past performance would be scored.

Five potential vendors, including One Community Auto, LLC (OCA) submitted quotations. After evaluation, the Army notified OCA that the award would be made to a competitor. In its debriefing, OCA learned that its quotation had been rated acceptable for technical merit and past performance, but that OCA had not submitted the lowest price.

OCA filed a GAO bid protest, saying that it was “protesting the award based on ambiguous or indefinite evaluation factors.” OCA complained that the RFQ did not “state how [the Army] would evaluate quotations.” OCA argued that technical merit and past performance factors should have been evaluated qualitatively, instead of on a pass/fail basis.

The GAO wrote that its Bid Protest Regulations “contain strict rules for the timely submission of protests.” These rules “reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process.”  

The GAO’s timeliness rules “require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals or quotations be filed before that time.” The GAO explained:

It is well-settled that a party who has the opportunity to object to allegedly improper or patently ambiguous terms in a solicitation, but fails to do so prior to the time set for receipt of proposals, waives its ability to raise the same objection later.  The purpose of our timeliness rule in this regard is to afford the parties an opportunity to resolve ambiguities prior to the submission of offers, so that such provisions can be remedied before offerors formulate their proposals. 

In this case, the GAO wrote, “the language in the solicitation is internally inconsistent.” For example, “some terms appear to support a [lowest-price, technically-acceptable] source selection methodology, while other terms seem to support a best-value tradeoff approach.” The GAO concluded that “the solicitation’s language is conflicting on its face, and is consequently patently ambiguous.” Because OCA did not challenge the solicitation’s terms until after award was made, the GAO dismissed OCA’s protest as untimely.

The One Community Auto decision shows the inherent problem with the “wait and see how it plays out” approach to solicitation defects. Where a defect is deemed “patent” (and, in my experience, that’s how the GAO views most solicitation defects), an offeror waives its right to protest by failing to challenge the defect before the due date for proposals.

As a practical matter, this timeliness rule can cause some heartburn for contractors. Most offerors understandably are not particularly eager to protest a solicitation before the evaluation occurs. Even those who believe (like I do) that most agency officials bend over backwards to avoid bias still may think that such a protest is not especially helpful to their chances of award.

But just because the timeliness rules apply to protests doesn’t mean that a protest is the only way to resolve solicitation defects. In my experience, many–perhaps most–patent defects can be resolved before the proposal date simply by communicating with the agency. I long ago lost count of the times that I advised a client to simply email the Contracting Officer, saying something like, “we really, really, really don’t want to protest, but we respectfully think that the solicitation contains an ambiguity . . ..” Often (not always, of course), this does the trick, with no protest needed.

It’s not clear from the GAO’s decision whether OCA tried to contact the agency before it submitted its quotation. Either way, once the deadline for quotations passed, OCA waived its right to protest the RFQ’s defects. When it comes to solicitation defects, speak now, or forever hold your peace.

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