Special Operations or Paint Ball? Protester Argues Solicitation is Ambiguous

Solicitations are intended to provide contractors with sufficient information about an agency’s needs to compete intelligently for government awards. In a recent procurement for special operations forces training facilities, one bidder alleged the solicitation provided so little detail that the solicited site “might just as well be a thrown-together paintball site for teenage birthday parties.” Clearly in no mood to party, GAO denied the protest, taking the agency at its word that its requirements were minimal.

Seventh Dimension, LLC, B-417630.2 et al. (Comp. Gen. Dec. 26, 2019), involved a procurement for the Army’s Special Operations Command (“USASOC”) for role playing training facilities, and associated support services. The procurement was to support training initiatives conducted by USASOC.

According to the solicitation, USASOC would be responsible for providing the land and facilities for the training, including mock villages. The desired area for conducting the training was the North Carolina Sandhills Gamelands. USASOC was working with the North Carolina Wildlife Resources Commission to develop a memorandum of understanding for use of the facility when the solicitation was issued.

As there was a chance an agreement could not be reached on use of the Sandhills Gamelands, the solicitation advised offerors that they may be required to “[p]rovide four (4) village sites/locations with 8 to 10 stick built structures on a sufficient tract of land that can be used to replicate a variety of cultural locations.” Any contractor provided site would also need to provide “[a] surrounding road network . . . to facilitate convoy movement procedures for students to utilize in route to specified targets.”

After USASOC had received initial proposals, it learned the North Carolina Wildlife Resources Commission would not allow use of the Sandhills Gamelands. As such, USASOC amended the solicitation to require contractors to provide land and facilities for the training operations.

The amended solicitation provided a number of specific requirements for the village structures to be constructed on the site. For example, contractors were required to provide 4 villages, each with “a minimum of 8 stick-built structures.” The village buildings were to be a mixture of single and double-story structures, some containing multiple rooms. All rooms were to have an interior ceiling height of at least 8 feet and an all-weather roof. Each structure was also required to have “at least one exterior entrance with a functional door” and “at least two window openings with functional shutters or an operational window with glass.”

Contractors within the competitive range were given an opportunity to submit modified proposal responding to the revised solicitation requirements. Prior to the due date for proposal submission, Seventh Dimension protested the amended terms of the solicitation.

In its protest, Seventh Dimension raised a number of challenges to the amended solicitation, including a challenge that the amendment provided insufficient information and introduced ambiguities. As GAO summarized, “[Seventh Dimension] contends that the amended RFP does not provide adequate details for various required features of the training facility, including parking, storage, usage-related maintenance requirements, road network complexity, and village density.” Seventh Dimension further argued that the live fire and explosive use requirements were insufficiently defined.

In response, USASOC explained that its requirements were minimal and fully defined in the solicitation. According to USASOC “[t]here is no need to elaborate on the requirements because there is nothing to elaborate—the requirements are purposefully minimalistic because that is all [USASOC] requires for this effort.” Ultimately, USASOC stood firm in arguing that its infrastructure simulation needs were minimal and did not require further explanation in the solicitation.

In resolving the protest challenge, GAO explained that while solicitations must be sufficiently free of ambiguity to enable offerors to intelligently compete for contracts, “[t]here is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror[.]” Applying this standard to Seventh Dimensions’ protest, GAO concluded the amended solicitation provided sufficient instructions to offerors. According to GAO, “[Seventh Dimension] appears to believe that because the agency’s training needs are sophisticated, the training facility must also be more sophisticated than what has been described in [the amended solicitation].” As the agency confirmed, however, sophistication was not required to meet its needs.

GAO then proceeded to address a number of discrete examples raised by Seventh Dimension. First, GAO addressed Seventh Dimensions allegations that the solicitation failed to specify material requirements of the access requirements, such as “whether the roads should be paved or made to accommodate specific widths or weights of vehicles; or how convoys of vehicles would be brought on to the training site, staged, and parked when not in use.” GAO was not persuaded, and concluded that USASOC decision to leave some of these decisions to the discretion of contractors was purposefully designed to shift the risk to contractors.

Next, GAO addressed Seventh Dimension’s allegation that the solicitation’s live fire requirements created ambiguous terms. As GAO explained, ambiguities are present when “a solicitation requirement is subject to more than one reasonable interpretation when read in the context of the solicitation as a whole.” In the case of Seventh Dimension’s protest, however, GAO found no ambiguities. In GAO’s words, “[t]he ‘ambiguity’ alleged by the protester does not stem from a solicitation provision that is subject to more than one reasonable interpretation, but from the absence of an explicit requirement to possess or maintain firearms or explosives licenses or for a requirement to demonstrate compliance with zoning or permitting requirements.” So far as GAO was concerned, the absence of an express requirement did not result in ambiguous solicitation terms. Instead, it merely shifted risk to offerors.

Ultimately, GAO’s decision in Seventh Dimension highlights one of the struggles contractors face in preparing proposals. Seventh Dimension identified numerous pieces of information that were relevant to its bid preparation, but were not clearly specified in the solicitation. This increased the risk that assumptions made by Seventh Dimension about USASOC’s needs would lead to an unsuccessful proposal. According to GAO, USASOC could rightfully shift this risk onto contractors. Unfortunately, federal contracting is a competitive arena where certainty can be lacking; GAO’s decision in Seventh Dimension confirms that the uncertainty is by design.

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