New When a dispute arises as to the actual meaning of solicitation language, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation. See Level 3 Commc'ns LLC, B-412854 et al., June 21, 2016, 2016 CPD ¶ 171 at 7; KAES Enters., LLC, B-411225 et al., June 18, 2015, 2015 CPD ¶ 186 at 5. An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. Colt Def., LLC, B-406696, July 24, 2012, 2012 CPD ¶ 302 at 8. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error. Desbuild, Inc., B-413613.2, Jan. 13, 2017, 2017 CPD ¶ 23 at 8; Odyssey Sys. Consulting Grp., Ltd., B-412519, B-412519.2, Mar. 11, 2016, 2016 CPD ¶ 86 at 5. In such situations, an offeror may not simply make unilateral assumptions regarding the meaning of patently ambiguous terms in the solicitation and then expect relief when the agency does not act in the manner assumed. Superior Gov't Solutions, B-409475.4, B-409475.5, Sept. 25, 2014, 2014 CPD ¶ 292 at 6. Rather, the offeror must challenge the alleged ambiguity prior to the time set for receipt of proposals. Id. (citing 4 C.F.R. § 21.2(a)(1)).
The proposal shall demonstrate the [o]fferor's overall [t]echnical [a]pproach and specific [m]ethodology that supports each applicable [t]ask [a]rea.
Proposals providing examples of experience and/or qualifications addressing the specific [t]ask [a]reas that demonstrate the [o]fferor's increased competence, increased merit and/or increased probability of successful contract performance, may be evaluated more favorably . . . .
The [g]overnment will evaluate, specific to each of the ten (10) [t]ask [a]reas identified below, the [o]fferors' proposed technical approach and methodology in order to assess the level of knowledge and expertise for each [t]ask [a]rea proposed. More favorable ratings may be assessed for [o]fferors providing additional examples of their experience and/or qualifications beyond those minimally required to address a specific [t]ask [a]rea . . . .
PTP maintains that nothing in the solicitation required offerors to submit a narrative description of how the offeror planned to perform. Protester's Comments at 5. PTP further contends it reasonably understood the solicitation to permit use of examples of experience to demonstrate its technical approach and methodology because of the solicitation's use of the word "additional" to modify "examples of their experience" and "beyond those minimally required" which indicated that the minimum requirements could also be demonstrated by "examples of their experience." Protester's Comments at 5. By contrast, the agency contends that the requirement for offerors to provide their overall technical approach and specific methodology that supports each applicable task area, in addition to, examples of experience and/or qualifications addressing the specific task area that demonstrate the offeror's increased probability of successful contract performance, was clear from the instructions that set forth these requirements separately (corresponding to L.3.2.a and L.3.2.b). AR, Supp. MOL at 4.
Notwithstanding PTP's characterization of its protest as one challenging the agency's use of unstated evaluation criteria, we find that PTP essentially challenges an alleged defect in the solicitation that was apparent prior to the time for the submission of proposals. Our review of the record shows that both the instructions and the evaluation language in the solicitation were silent as to what the agency would utilize to evaluate the offeror's demonstration of its proposed technical approach and methodology. The solicitation does not indicate whether the agency would evaluate proposals through separate narratives or examples of experience and/or qualifications.
We first address PSI's contention that the agency failed to conduct a proper cost realism analysis. In support of this argument, the protester points to a "Problem Statement" in the RFP, which the offerors were required to address in their technical/management proposals. Protest at 12; RFP at 144-46. As relevant here, the solicitation provided for the evaluation of offerors' approaches to addressing the Problem Statement under seven technical subfactors. Id. The protester asserts that the Problem Statement was "very complex," and that, by failing to consider "the complexity of the technical/management subfactors . . . [in] the [a]gency's cost realism analysis," the agency's cost evaluation was improper. Protest at 13. DISA responds that PSI's protest in this regard is an untimely challenge to the terms of the solicitation. For the reasons discussed below, we agree with the agency that PSI's post-award challenge to the agency's methodology for evaluating the offerors' proposed costs is untimely.
Our 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. Verizon Wireless, B-406854, B-406854.2, Sept. 17, 2012, 2012 CPD ¶ 260 at 4. Our timeliness rules specifically require that a protest based upon alleged solicitation improprieties that are apparent prior to the closing time for submission of proposals must be filed before that time. 4 C.F.R. § 21.2(a)(1); see AmaTerra Envtl. Inc., B-408290.2, Oct. 23, 2013, 2013 CPD ¶ 242 at 3.
Here, as set forth above, the solicitation specified a detailed approach for the agency's evaluation of cost realism. RFP at 149. In this regard, offerors were informed that the agency would conduct a standard deviation cost realism analysis on the offerors' proposed labor rates for the 116 labor categories provided in the RFP (for both government and contractor sites). Id. The solicitation provided that the agency would develop an average cost reimbursable labor rate for each of the 116 labor categories from the labor rates proposed by the offerors. Id. The solicitation also advised offerors that the agency would consider any labor rate within one standard deviation of the average to be realistic, subject to additional cost/price analysis. For any rate found to be outside of the one standard deviation, the solicitation provided that it would be evaluated by component (direct rates, indirect rates, etc.). If inadequate or no justification was provided for any component, the solicitation explained that "the Government [would] adjust the fully burdened CR Labor rate to be equal to the average for purposes of calculating the [m]ost [p]robable [c]ost for that offeror." Id. Based on this analysis, the RFP provided that the agency would "calculate a total [m]ost [p]robable [c]ost" for the cost reimbursement portion of the proposal for each offeror "by applying Government estimated labor hours for each year of contract performance to each offeror's most probable cost labor rates for each labor category at both Government and contractor sites." Id.
Turning to the protester’s allegation that the solicitation was ambiguous with regard to whether the procurement was set aside for SDVOSBs, the agency argues that ODG has not shown that the solicitation is ambiguous in this regard because the protester’s interpretation of RFP amendment 02 is unreasonable. The agency contends that ODG’s interpretation ignores other indicia in the RFP that make clear that the procurement is a total set-aside for SDVOSBs. Supp. Memorandum of Law (MOL) at 2-4. The contracting officer explains that her intent with RFP amendment 02 “was to remove the requirement that 50 percent of the cost of personnel for services be from a SDVOSB, as the cost of any furniture installation would have been ancillary and dwarfed by the cost of the furniture itself.” Supp. Contracting Officer Statement, at 2.
An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. As a general matter, where a dispute exists as to the meaning of a particular solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of the provisions; to be reasonable, an interpretation must be consistent with such a reading. ArmorWorks Enters., LLC, B-405450, Oct. 28, 2011, 2011 CPD ¶ 242 at 3. A party’s particular interpretation need not be the most reasonable to support a finding of ambiguity; rather, a party need only show that its reading of the solicitation provisions is reasonable and susceptible of the understanding it reached. RELI Grp., Inc., supra.
On this record, we find that amendment 02 to the RFP contained obvious errors that created a patent ambiguity as to whether the solicitation was set aside for SDVOSB competition. The RFP’s set-aside status is susceptible to at least two interpretations. Here, on the one hand, the RFP indicated in SF1449, block 10, that it was set aside for SDVOSBs, and the RFP still included language advising that a resulting contract would include VAAR clause 852.219-1. See RFP at 1, 5; Amendment 02, at 1. On the other hand, an express purpose of Amendment 02 was to remove VAAR clause 852.219-10, as well as a part of FAR § 52.212-1, which instructed offerors to demonstrate in their proposals how they would meet the requirements of the (now removed) mandatory VAAR clause. Given the conflicting information in the solicitation, it is impossible to determine conclusively whether the solicitation was set aside for SDVOSBs; in short, the amended solicitation was patently ambiguous.
Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2. An ambiguity exists where two or more reasonable interpretations of the terms or specification of the solicitation are possible. Sygnetics, Inc., B-414649, Aug. 2, 2017, 2017 CPD ¶ 253 at 2. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle. Id. Under our Bid Protest Regulations, a patent ambiguity must be protested prior to the time set for receipt of initial proposals, when it is most practicable to take effective action against such defects. Id.; 4 C.F.R. § 21.2(a)(1).
In reviewing and evaluating the offerors' price proposals I found that several had followed this instruction and adjusted their calculations to reflect their company's business practices and risk decisions as it related to the PMO calculation and allocation. All of the approaches varied and could be considered viable corporate business choices. At the base IDIQ contract level, Protester chose to average its PMO rates across all courses. This too seems to be a viable business decision as it spreads the risk of receiving higher or lower cost regional task orders and it spreads the risk of which courses will in fact be ordered/delivered since not all courses are guaranteed to be ordered.
COS at 13. Although offerors could propose different PMO allocations, the RFP explicitly stated that the fixed prices for the 69 standard courses would be incorporated in the IDIQ contracts awarded, and that the "fixed course prices will become the ceiling prices for any task order pricing awarded." RFP at 98. The RFP also provided separate price proposal workbooks for each of the seven task orders, and advised offerors that proposed course prices "cannot exceed the ceiling prices in the base contract award." Id. at 103. We see no reason, and the protester does not explain why, the ability to propose different PMO allocations at the task order level prevented it from complying with the solicitation's explicit limitation of task order course prices to the ceiling prices established in its IDIQ contract.
The protester primarily argues that the amendment and the email with which the amendment was transmitted contain patent ambiguities as to the date from which prices were requested to be extended. In this regard, the protester essentially contends the solicitation is ambiguous because amendment 15 did not identify the date of the pricing that was to be extended, while the transmittal email referenced May 11, 2016--a date for receipt of FPRs that was superseded by subsequent amendments to the solicitation.
In response, the agency maintains that there are no ambiguities in the solicitation or amendments and observes that the protester’s arguments rely only on an inconsistency between a date referenced in the agency’s transmittal email and the amendment. See AR, MOL at 10-11. The agency also contends that notwithstanding the allegations in its protest, the cover letter with which American Access transmitted its acknowledged amendment 15 referred to its previously submitted FPR pricing--the only revised pricing that had been submitted subsequent to discussions and prior to the issuance of amendment 15. Id. at 10-11; see also AR, COS at 7.
When a dispute arises as to the actual meaning of solicitation language, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation. See Level 3 Commc’ns LLC, B-412854 et al., June 21, 2016, 2016 CPD ¶ 171 at 7; KAES Enters., LLC, B-411225 et al., June 18, 2015, 2015 CPD ¶ 186 at 5. A solicitation is not ambiguous unless it is susceptible to two or more reasonable interpretations. WingGate Travel, Inc., B-412921, July 1, 2016, 2016 CPD ¶ 179 at 7. If the solicitation language is unambiguous, our inquiry ceases. Id.
Here, the record shows that following discussions and subsequent changes to the solicitation, the only revised pricing proposals received from American Access were the three single FPRs American Access submitted (one for each SAO region) in response to amendment 13. While American Access was provided an opportunity to submit a revised proposal in response to amendment 14, it did not. Further, as evidenced in its cover letter transmitting the acknowledged amendment, it is clear that American Access itself understood amendment 15 to request that offerors extend their FPR pricing, and that the extension should be until April 16, 2017. Accordingly, on this record, we do not find that the protester has presented any reasonable interpretation of amendment 15 that is different from the agency’s interpretation, nor do we find that the protester’s arguments provide any basis to sustain the protest.
Finally, McLaurin argues that Tekton did not have a North Carolina refrigeration license at the time of proposal submission, and therefore, that the agency should have rejected its quotation as unacceptable. As discussed below, we find no merit to the protester’s argument.
As relevant here, the PWS stated that “[t]he contractor shall have [a North Carolina Refrigeration Contractor’s License] . . . on record with the [contracting officer] and [contracting officer representative] prior to performance start and as changes occur.” PWS § 1.3.2.5. A provision of the type included here that requires the contractor to obtain all necessary licenses, permits, or certifications needed to perform the work establish performance requirements that must be satisfied by the successful offeror during contract performance; as such, offerors are not required to satisfy the requirements prior to award, and they do not come into play in the award decision, except as a general responsibility matter. See United Segurança, Ltda., B 294388, Oct. 21, 2004, 2004 CPD ¶ 207 at 4. Our Bid Protest Regulations generally do not provide for our review of a contracting officer’s affirmative determination of an offeror’s responsibility, absent the applicability of exceptions not alleged here. Bid Protest Regulations, 4 C.F.R. § 21.5(c).
Here, the PWS did not require offerors to submit evidence of licenses. Rather, they were required to have them “on record . . . prior to performance start . . . .” PWS § 1.3.2.5. We think the plain language of this provision clearly articulated that the agency would not be evaluating the contractor’s license at the time of quotation submission.
McLaurin nonetheless argues that this PWS provision, when read in conjunction with the RFQ’s organizational structure evaluation factor, required the contractor to submit its North Carolina Refrigeration Contractor’s License with its quotation. In support of this interpretation, the protester notes that the organizational structure evaluation factor required evaluation of whether the contractor’s personnel were qualified in accordance with the PWS requirements, which the protester asserts, “necessarily means that the offeror must possess the North Carolina Refrigeration Contractor’s License at the time offers are submitted” because “contractor personnel may not be considered qualified if the contractor lacks the [license].” Comments (Nov. 19, 2015), at 20.
The Army disagrees with McLaurin’s interpretation that the PWS, in conjunction with the RFQ, required that the contractor have and submit the license at the time of quotation submission. Rather, the agency contends that the plain language of the PWS required only that the contractor provide its license prior to the start of performance.
Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2; Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD ¶ 140 at 2.
We conclude that the agency’s interpretation of the RFQ, when read as a whole, is reasonable, and the protester’s interpretation is not reasonable. With regard to the protester’s assertion that the contractor must have its license at the time of quotation submission, we note that the PWS included separate license and certification requirements for the personnel. For example, the PWS required that certain personnel proposed for the contract possess a North Carolina electrician certification, or a North Carolina refrigeration license. See PWS § 1.3.2.5. The resumes for Tekton’s proposed personnel included information regarding their certifications and licenses, see AR, Tab 5, Tekton Technical Proposal, at 2-8, and the record reflects that the agency evaluated this information. Accordingly, we find no merit to the protester’s argument in this regard. On this record, we conclude that the Army’s interpretation of the RFQ requirement was reasonable.
Submission of Proposals. Proposals shall only be accepted through FedConnect. It is imperative that the Offeror read and understand how to submit its quote using the FedConnect web portal by going to www.fedconnect.net. All proposal documents required by this solicitation must be uploaded and received in their entirety in the FedConnect Responses web portal no later than April 29, 2015 [subsequently extended to May 13, 2015 by RFP amendment No. 2]. Proposals submitted via hardcopy, email, or the FedConnect Message Center shall not be accepted or considered. Failure to submit a response that is received through the FedConnect Responses web portal by the stated time and date may result in the proposal not being considered. By submitting a proposal, the Offeror agrees to comply with all terms and conditions as set forth in this solicitation.
RFP at 83 (emphasis supplied). The protester focuses on the language emphasized above in maintaining that it reasonably concluded that it was only required to ensure that its proposal was “uploaded and received” in the FedConnect system in order to comply with the proposal submission instructions. The protester argues that any information included in the FedConnect tutorial was not part of the solicitation’s proposal submission instructions.
We find no merit to this aspect of Johnson Controls’ protest. The protester’s allegation essentially is that the RFP was ambiguous about whether or not the company was required to click the “Submit Response to Agency” button in the FedConnect system in order to complete the proposal submission process. Where, as here, a party alleges that a solicitation provision is ambiguous, the party must show that its interpretation of the provision is reasonable, although the proffered interpretation need not be the most reasonable one. Poly Pacific Technologies, Inc., B-293925.3, May 16, 2005, 2005 CPD ¶ 100 at 3. A reading of the RFP’s proposal submission instructions demonstrates that the protester’s interpretation is not reasonable.
Where the protester did not avail itself of the FedConnect tutorial, or otherwise educate itself on the functionality of the FedConnect system, the protester bore the risk of improper use of the system, and of the failure of its proposal to reach the proper place of receipt at the proper time.
As noted above, the FedConnect tutorial provided express instructions about how to complete the submission of a proposal, namely, that the offeror had to click the “Submit Response to Agency” button in order for the proposal actually to be submitted. In effect, therefore, it was not enough, as the protester contends, for it merely to ensure that its proposal was “uploaded and received” in the FedConnect system. The protester also was required by the proposal submission instructions to click the “Send Response to Agency” button in order to complete the proposal submission process. We therefore deny this aspect of Johnson Controls’ protest.
Johnson Controls argues alternatively that its proposal can be accepted because it effectively was in the government’s control as soon as the protester completed uploading its proposal to the FedConnect system on May 12, the day before the deadline for submitting proposals. The protester points out that, the FedConnect system shows the history of its activities on the website. Johnson Controls maintains that, because that history shows that it did not access and edit its proposal after it completed uploading it on May 12, the fact that it ultimately did not submit it until May 18 is immaterial, since it effectively completed uploading the proposal before the submission deadline.
We also find no merit to this aspect of Johnson Controls’ protest. In determining whether or not a late-submitted proposal was “under the Government’s control” prior to the time set for receipt of proposals, we consistently have held that an offeror must, at a minimum, have relinquished custody of the proposal to the government. B&S Transport, Inc., B‑404648.3, April 8, 2011, 2011 CPD ¶ 84 at 4; see also Immediate Systems Resources, Inc., B-292856, Dec. 9, 2003, 2003 CPD ¶ 227 at 3-4. This requirement precludes any possibility that an offeror could alter, revise or otherwise modify its proposal after other offerors’ competing proposals have been submitted. Id.
Here, the record shows that, because Johnson Controls did not click on the “Submit Response to Agency” button, it was free to edit or modify its proposal beyond the deadline for submission. The FedConnect tutorial expressly states that clicking the “Submit Response to Agency” button converts the uploaded proposal into a “read only” document, that is, one that cannot be edited or modified. FedConnect Tutorial, at 39. The record therefore shows that Johnson Controls did not relinquish control of the proposal until May 18, after the deadline for submitting proposals.
The fact that the protester here did not actually alter its proposal does not require the agency to accept it. As stated above, the requirement for the offeror to have relinquished control of the proposal to the government is necessary in order to preclude any potential that the proposal could have been altered. B&S Transport, Inc., supra. In addition, by not relinquishing control over its proposal, the protester was afforded an additional five days in which to decide whether to submit its proposal, which arguably provided the protester with a competitive advantage over the other offerors. We therefore deny this aspect of Johnson Controls’ protest.
Coastal contends that SGI’s proposed wage rates do not comply with the [collective bargaining agreement] CBA, as incorporated into the RFP, or the Service Contract Act. The protester argues that because DHS failed to recognize this noncompliance, the agency’s price realism analysis was flawed.
Coastal argues that DHS misinterpreted the collective bargaining agreements that established minimum proposed wage rates, and that this error resulted in a flawed price analysis and an erroneous determination that SGI’s proposal was compliant with the RFP. Protester’s Comments & Supp. Protest (Aug. 3, 2015) at 3.
Solicitations must contain sufficient information to enable offerors to compete intelligently and on a relatively equal basis. See Government & Military Certification Sys. Inc., B-411261, June 26, 2015, 2015 CPD ¶ 192 at 5; Tennier Indus., Inc., B‑299624, July 12, 2007, 2007 CPD ¶ 129 at 2. In this regard, an ambiguity exists where two or more reasonable interpretations of the solicitation are possible. Colt Def., LLC, B‑406696, July 24, 2012, 2012 CPD ¶ 302 at 8. An obvious, gross, or glaring error in the solicitation is a patent ambiguity; a latent ambiguity is more subtle. Id. Where there is a latent ambiguity, both parties’ interpretation of the provision may be reasonable, and the appropriate course of action is to clarify the requirement and afford offerors an opportunity to submit proposals based on the clarified requirement. Id.
RFP at 274. The agency advised offerors that to the extent offerors had questions regarding the CBA, the agency would not interpret the CBA’s provisions.
[The CBA for guards] lists a range for wages, but does not provide a criteria for determining a wage within the range. In the absence of any guidance, we used the lowest rate in the range for our wages. If new wages are negotiated prior to contract award, a request for equitable adjustment will be needed for compliance.
Decl. of Coastal Vice President (Aug. 3, 2015), at 1.
DHS does not specifically dispute the protester’s representation that the August 2014-August 2015 CBA wage rates were a single rate. Instead, the agency states that in its evaluation of offerors’ proposals, it interpreted the CBA as providing a range of acceptable wage rates that became effective on August 1, 2014. Decl. of CO (Aug. 12, 2015), at 1; see also AR, Tab 26, Email of Contract Specialist (Apr. 30, 2015), at 1 (“The CBA includes a range for [protective security officers] of $27.25-$28.25.”). The agency argues that because the ambiguous CBA was incorporated into the RFP, this gave rise to a patent ambiguity that Coastal was required to challenge prior to the date set for receipt of proposals. Supp. AR, at 23‑24.
We find that the protester’s and the agency’s interpretations of the CBA are both reasonable, and a result, conclude that the solicitation contained an ambiguity regarding the wage rates that prevented offerors from competing intelligently and on a relatively equal basis. Coastal, as the incumbent and party to the CBA, states that it knew the prevailing wage rate and thereby had no basis to conclude that the CBA was ambiguous. We agree that, under these circumstances, the protester did not have a reason to question the interpretation of the CBA, as incorporated into the solicitation. On the other hand, we agree with the agency that the plain language of the CBA, quoted above, could be read to suggest that the wage rates for August 2014 to August 2015 could be a range. For this reason, we conclude that the solicitation was latently ambiguous, in that Coastal had no reason to know that DHS would interpret the CBA as providing for a range of acceptable wages.
Although we conclude that the CBA provisions were latently ambiguous, DHS’s interpretation that the CBA allows a range of acceptable wages creates a potential conflict as to compliance with the requirements of the Service Contract Act. In this regard, the Service Contract Act prohibits a successor contractor from paying covered employees “less than the wages and fringe benefits . . . to which such service employees would have been entitled if they were employed under the predecessor contract[.]” 41 U.S.C. § 353(c). Although DHS claimed that the CBA allowed for a range of hourly wages, it did not determine when the CBA required that any employee be paid a wage higher than the bottom of the supposed range, whether due to seniority of the incumbent employee or any other factor. Nevertheless, DHS found that the awardee’s proposal would comply with the CBA even if all personnel were paid at the bottom of the wage range, a conclusion at odds with the agency’s own interpretation of the CBA and the Service Contract Act. See AR, Tab 12, Business Clearance Memorandum, at 51 (SGI’s proposed wage rates were “in accordance with the applicable collective bargaining agreements.”). Consequently, it appears that DHS’s evaluation of SGI’s proposal, which was based on the wage rate at the bottom of the supposed range, failed to consider whether SGI’s proposed labor rates were below the wages currently paid to CBA-covered employees.
In sum, we conclude that the solicitation was ambiguous as to the mandatory wage rates to be paid under the CBA. We further conclude that the RFP did not contain sufficient information to enable offerors to compete intelligently and on a relatively equal basis because it contained a latent ambiguity. We next address the effect of this ambiguity on DHS’s evaluation of the realism of the offerors’ proposed prices.
Coastal alleges that DHS’s interpretation of the RFP regarding the applicable wage rates in the CBA resulted in a flawed price realism analysis. Protester’s Comments & Supp. Protest (Aug. 3, 2015) at 6. For the reasons discussed below, we agree.
Where a solicitation anticipates an award based on fixed-price, fully-burdened labor rates, an agency may provide for the use of a price realism analysis for the limited purpose of measuring a vendor’s understanding of the requirements or to assess the risk inherent in a vendor’s quotation. See Ball Aerospace & Techs. Corp., B‑402148, Jan. 25, 2010, 2010 CPD ¶ 37 at 8. The nature and extent of an agency’s price realism analysis are matters within the agency’s discretion. Star Mountain, Inc., B‑285883, Oct. 25, 2000, 2000 CPD ¶ 189 at 6. Our review of a price realism analysis is limited to determining whether it was reasonable and consistent with the terms of the solicitation. Smiths Detection, Inc.; Am. Sci. & Eng’g, Inc., B‑402168.4 et al., Feb. 9, 2011, 2011 CPD ¶ 39 at 17.
DHS explains that here, “[a] price realism review was conducted to determine whether the proposed price element breakdowns (1) reflect a clear understanding of the solicitation requirements, (2) the significant proposed price elements are realistic for the work to be performed, and (3) are consistent with the management approach described in the contractor’s technical proposal.” AR, Tab 12, Business Clearance Memorandum, at 47. As part of its price realism analysis, the agency examined offerors’ profit margins in order to “avoid the risk of poor performance from a contractor who is forced to provide services at little or no profit in combination with not realistically pricing the costs of contract performance.” Id. at 48. As part of its realism analysis, the agency directly compared Coastal’s and SGI’s proposed labor rates, fringe benefits, other direct costs, G&A and profit, finding that these elements (totaling approximately $[DELETED] million) constituted “the majority of the [price] variance” between the two firms. Id. at 51. Based on this comparison, DHS concluded that SGI’s price was realistic. Id.
Because we found above that the solicitation contained a latent ambiguity regarding the minimum wage required under the CBA, we correspondingly find that the price realism analysis--which rests on the flawed price proposals--was not consistent with the terms of the solicitation because the relevant portions of the solicitation remain ambiguous. Specifically, we conclude that the agency’s price realism analysis is not reasonable because, to the extent the agency relied on SGI’s anticipated profit to demonstrate that its overall price was realistic, this analysis failed to account for the latent ambiguity in the CBA regarding the wages SGI would be required to pay.
Although the agency has considerable latitude in its realism analysis, it must be reasonable. Here, in addition to using a price realism analysis to determine whether offerors understood the contract requirements, the agency analyzed profit as a part of realism, explicitly linking low profit margins and performance risk, reasonably presuming that a contractor “forced to provide services at little or no profit” would be a greater risk because there would be no potential for profiting from those efforts. AR, Tab 12, Business Clearance Memorandum, at 48. SGI proposed an average profit of [DELETED] percent, or $[DELETED], over the life of the contract. Id.; AR, Tab 4, SGI Proposal, at 111.
Since the current (August 2014-August 2015) CBA base rates are $0.50 per hour higher than SGI’s proposed rates of $27.75 and $28.15, the overtime rates, payable at 1.5 times the base rate, are therefore $0.75 higher. SGI proposed [DELETED] base guard hours and [DELETED] overtime hours over the life of the contract. AR, Tab 4, SGI Proposal, at 108. The Service Contract Act requires SGI to pay wages no lower than the CBA-mandated rates--resulting in an increase in SGI’s costs by at least $[DELETED] over the life of the contract. 41 U.S.C. § 353(c). As a result, after subtracting the impact of the actual CBA rate from SGI’s proposed profit, SGI’s profit over the life of the 5 and 1/2 year contract is reduced from $[DELETED] to approximately $[DELETED]. Thus, whereas the agency concluded that the awardee’s anticipated profit margin of approximately [DELETED] percent demonstrated that its proposed price was realistic, after paying the CBA wage rate, the awardee’s profit margin would be reduced to approximately [DELETED] percent.
Point Blank asserts that the award of contracts to Bethel, Hawk and KDH was contrary to the RFP’s requirement that no offeror could receive more than one award. In this regard, the protester argues that there is significant commonality between the technical approaches of the three awardees. Specifically, the Price Negotiation Memorandum indicated that Bethel would manufacture the vest carrier components and subcontract the soft ballistics manufacturing to KDH; KDH would manufacture the entire vest and, if required, would subcontract the carrier manufacturing to two small businesses (Bethel and Savannah Luggage (Savannah)); and Hawk would subcontract the entire effort to three small businesses, KDH, Savannah and Bethel, with KDH performing the soft ballistics manufacturing. AR, Tab 5, Price Negotiation Memorandum, at 14-15.
Point Blank argues that the three awards actually result in one award to KDH in violation of the terms of the solicitation because KDH will provide the ballistic inserts under all three awarded contracts and will also provide the carrier under at least two of the contracts. Point Blank contends that as a result of its role as a subcontractor to the other two offerors, KDH will control the pricing of the vests. The protester further asserts that its contentions are supported by similarities in the wording or other details of the proposals, and by the fact that KDH received the award for the first delivery order. Comments & Supp. Protest at 6-15.
In response, the Army explains that while the RFP restricted the number of awards an offeror could receive as a prime contractor, it did not place any restrictions on the number of awards an offeror and prime contractor could receive as a subcontractor. Combined AR/CO Statement at 6; Agency Response to Request for Additional Information at 4. Further, in response to Point Blank’s claim that KDH will control the pricing of the vests, the agency points out that the awardees will be able to compete with each other at the task order level on the basis of many other factors (e.g., other components of the vests, materials, overhead, fringe benefits, and general and administrative expenses), Combined AR/CO Statement at 7, and, in any case, the awardees could later use a different soft armor ballistic insert provider so long as the new vest, with the new provider, meets the first article testing requirements before beginning production, Supp. Combined AR/CO Statement at 7; RFP at 22 (“Any change in the production of the approved First Article must be reported in writing to the [contracting officer] and the [contracting officer’s representative] for determination if a new [first article test] is required.”).
Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Indus. for the Blind, Inc., B-409528.35, B-409528.36, Dec. 3, 2014, 2014 CPD ¶ 360 at 5; Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2; Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD ¶ 140 at 2. Where a dispute exists as to a solicitation’s actual requirements, we will first examine the plain language of the solicitation. ITT Electronic Sys. Radar, Reconnaissance & Acoustic Sys., B-405608, Dec. 5, 2011, 2012 CPD ¶ 7 at 7.
With regard to FFLPro’s first argument--that VariQ’s proposal should have been found unacceptable for not meeting the solicitation’s past performance evaluation criteria--those criteria, in our view, were patently ambiguous. An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. Colt Def., LLC, B‑406696, July 24, 2012, 2012 CPD ¶ 302 at 8. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle. Id. Where, as here, a patent ambiguity is not challenged prior to submission of solicitation responses, we will not consider subsequent untimely arguments asserting the protester’s own interpretation of the ambiguous provisions. Marine Group Boat Works, LLC, B‑404277, B-404277.2, Jan. 19, 2011, 2011 CPD ¶ 23 at 4; Kellogg Brown & Root, Inc., B-291769, B‑291769.2, Mar. 24, 2003, 2003 CPD ¶ 96 at 8; Bank of Am., B‑287608, B‑287608.2, July 26, 2001, 2001 CPD ¶ 137 at 10. An offeror who chooses to compete under a patently ambiguous solicitation does so at its own peril, and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations. Wackenhut Servs., Inc., B‑276012.2, Sept. 1, 1998, 98-2 CPD ¶ 75 at 4-5.
The past performance provisions of the RFP here include numerous ambiguities that were obvious on the face of the solicitation, but which FFLPro did not timely challenge. First, the solicitation did not identify what the agency would evaluate in the event that an offeror could not identify three past performance projects. In this respect, it is unclear whether the criteria that the protester deems “alternate” criteria (see supra n.1) applied to all offerors, or only to offerors that identified fewer than three projects. Second, the RFP is unclear about the extent to which the past performance provisions apply to the offeror and/or its proposed subcontractors. For example, some of the RFP’s proposal instructions indicate, explicitly, whether they apply to the “prime only” (e.g., financial responsibility) or to both the “prime and subcontractor” (e.g., corporate experience). RFP amend. 4 at 29. However, the RFP’s past performance instructions were silent in that regard and its submission requirements were inconsistent. For example, the RFP instructed offerors to send questionnaires to the customer reference for each project submitted with a proposal, but stated that the agency would “not accept or consider Past Performance Questionnaires for subcontractors.” Id. at 30. The RFP’s answers to offerors’ questions introduced further ambiguities in these requirements.
Costello asserts the following regarding Jasper’s quotation: “[T]he awardee did not contact local area candidates (now performing the tasks) until after award. This indicates the ‘specific resources that will be used to perform the work’ could not have been described in the submission of the awardee’s proposal, as required by the solicitation.” Response to Dismissal Request at 1. The protester argues that the RFQ required firms to provide in their quotations information (such as type of experience, length of experience, certifications and training) for the specific individuals (musicians, youth group leaders, and religious educators) proposed to perform the work described in the PWS. In support of this interpretation, the protester points to the following sentence in the RFQ: “Describe specific resources that will be used to perform the work described in the Performance Work Statement, to include type of experience, length of experience, certifications and training.” RFQ at 4.
The Air Force disagrees with the protester’s interpretation that this RFQ provision refers to specific personnel to conduct the work, and contends that this statement, instead, refers to the qualification and experience the company has with their ability to provide qualified personnel to perform the work described in the PWS. Agency Request for Dismissal at 3. In this regard, the agency points to the Ombudsman’s findings which confirmed that “no specific resumes were required to be submitted in the proposals although sample resumes were provided by the awardee as proof of their ability to secure adequate resources per the PWS.” Ombudsman Review (Oct. 9, 2014), at 1.
1. Describe specific resources that will be used to perform the work described in the Performance Work Statement, to include type of experience, length of experience, certifications and training.
RFQ at 4. Reading this provision in its entirety, we think that subparagraphs (a) and (b) demonstrate that the language in paragraph 1 concerns the company’s capability, and did not require offerors to provide information regarding proposed staff.
In addition, as also discussed above, the RFQ’s technical evaluation criteria focused on the qualifications of the company, not on the qualifications of particular individuals. See, e.g., RFQ, exh. A, Technical Evaluation Checklist, at 1 (requiring “[p]revious experience managing military chapel contracts”). While one of the criteria asked that offerors demonstrate compliance with the PWS, this factor did not indicate that offerors must demonstrate that specific individuals complied with the PWS requirements. Id. Rather, the PWS indicated that information regarding the qualifications of specific individuals did not need to be provided until after contract award. See, e.g., PWS, Appx. B, at 19. In this regard, the protester acknowledges that the RFQ did not require that offerors submit resumes with their quotations. Response to Dismissal Request, at 1. On this record, we conclude that the Air Force’s interpretation of the RFQ requirements was reasonable.
Raymond asserts that the solicitation’s price evaluation scheme is flawed because it may produce misleading results with regard to whether one proposal is more or less competitive than another. Protest at 15-18; Comments at 13-17; Supp. Comments at 7-10. In this regard, Raymond asserts that the solicitation establishes the offerors’ unit pricing for the week of July 14-20, 2014, as the basis for comparing offers and determining which proposal offers the most competitive pricing. Protest at 16; Comments at 14; Supp. Comments at 9. Raymond points out that the unit pricing for the week of July 14 is not the “basis of the bargain” that the agency will receive during performance; rather, the basis of the bargain is the level of the patron savings discount. Protest at 16-17.
Raymond argues that using the nonbinding July 14 unit pricing as the basis of the agency’s competitive comparison--rather than using the binding patron savings discount percentage--permits offerors to “game” the solicitation by proposing artificially low unit prices for the week of July 14, coupled with lower patron savings discount percentages. Protest at 17-18; Comments at 15-16. Raymond argues that under this scenario, the agency may erroneously evaluate a proposal offering a lower proposed patron savings discount (e.g., 25 percent) as being a better value than a proposal offering a higher patron savings discount (e.g., 30 percent). Protest at 17-18; Comments at 15-16.
Offeror A may start with a [unit] price of $100.00 and apply its proposed Patron Savings discount percentage (assume 25%), equaling a price of $75.00 for evaluation purposes. Offeror B might start with a price of $105.00 and apply its proposed Patron Savings discount percentage (assume 25%), equaling a price of $78.75 for evaluation purposes. Offeror C might start with a price of $110.00 and apply its proposed Patron Savings discount percentage (assume 25%), equaling a price of $82.50 for evaluation purposes. Comparing these prices--$75.00 for Offeror A, $78.75 for Offeror B, and $82.50 for Offeror C--is [misleading]. Each of these companies would provide a 25% discount off the market prices during contract performance, yet during source selection [the agency] would evaluate Offeror A as offering the most advantageous price proposal . . . .
As a variation of this example, assume Offeror C starts with the same price of $110.00 but instead offers a 30% Patron Savings discount percentage, equaling a price of $77.00 for evaluation purposes. Even though Offeror C, with its 30% discount, plainly would be offering the lowest prices during contract performance, [the agency] would still evaluate Offeror A, with its calculated price of $75.00, as offering the more advantageous price proposal.
Protest at 16-17 (footnotes omitted).
Agencies must consider cost or price to the government in evaluating proposals. 10 U.S.C. § 2305(a)(3)(A)(ii) (2012). While it is up to an agency to decide on some appropriate and reasonable method for evaluating offerors’ prices, an agency may not use an evaluation method that produces a misleading result. See Bristol-Myers Squibb Co., B-294944.2, Jan. 18, 2005, 2005 CPD ¶ 16 at 4; AirTrakTravel et al., B‑292101 et al., June 30, 2003, 2003 CPD ¶ 117 at 22. The method chosen must include some reasonable basis for evaluating or comparing the relative costs of proposals, so as to establish whether one offeror’s proposal would be more or less costly than another’s. See Bristol-Myers Squibb Co., supra; AirTrakTravel et al., supra.
In response to Raymond’s claim, the agency states that the unit prices for the week of July 14 are being used for a “snapshot-in-time” evaluation of price reasonableness and realism and to “assess the offeror’s understanding of the application of the proposed savings percentage.” Contracting Officer’s Statement at 11; Memorandum of Law at 7. The agency further states that “the evaluation of price is to be based on the proposed minimum percentage of patron savings.” Memorandum of Law at 7; see also Contracting Officer’s Statement at 11 (stating, without citation to the record, that “[t]he Patron Savings percentage offered in response to the solicitation is the basis of the price evaluation”); Supp. Contracting Officer’s Statement at 5 (stating, without citation to the record, that “the percentage of Patron Savings . . . is the stated price evaluation criteri[on] in the solicitation”).
We view the evaluation method described by the agency in response to the protest‑‑i.e., using the proposed patron savings discount percentage to evaluate the competitiveness of proposals and using the July 14 “snapshot-in-time” pricing to evaluating price reasonableness and realism--as reasonable. However, it is different from the evaluation methodology in the solicitation in two key respects. First, nowhere does the solicitation state that the evaluation of price is to be based on an offeror’s proposed patron savings discount percentage. Second, the solicitation includes a provision that is reasonably interpreted as establishing the July 14 “snapshot-in-time” pricing--rather than the proposed patron savings discount percentage--as the basis of the agency’s award decision. Specifically, the solicitation states that “[t]he Government will calculate and evaluate as basis of contract award the total evaluated price for all HVCI for the base period and all option years.” RFP, amend. No. 0005, at 4. As illustrated by Raymond, evaluating the competitiveness of proposals based on the offerors’ unit pricing for the week of July 14 could lead to misleading results because a proposal offering a lower patron savings discount percentage could be evaluated more favorably than a proposal offering a higher patron savings discount percentage.
The agency raises various arguments purporting to show why the solicitation’s price evaluation scheme is not flawed. We find none of them persuasive. For example, the contracting officer provides two sample calculations of how the agency would evaluate two sets of hypothetical pricing. Supp. Contracting Officer’s Statement at 4-5. These samples, the contracting officer argues, show that Raymond has “misinterpreted” the solicitation’s evaluation methodology. Id.
We have analyzed the contracting officer’s computations. While the computations reflect that a proposal with significantly below-market pricing for the week of July 14 could be eliminated from the competition as unrealistic, the computations do not resolve the issue identified in Raymond’s protest--namely, that the solicitation’s provision for the use of an offeror’s July 14 unit pricing as the basis for award could lead to a proposal offering a lower patron savings discount to be evaluated more favorably than a proposal offering a higher patron savings discount.
The agency also argues that the solicitation is not flawed because in decisions resolving prior protests of prior FF&V procurements, our Office “endorsed” this evaluation scheme. Memorandum of Law at 6-7 (citing Phila. Produce Mkt. Wholesalers, LLC, B-298751.5, May 1, 2007, 2007 CPD ¶ 87; OK Produce; Coast Citrus Distribs., B-299058, B-299058.2, Feb. 7, 2007, 2007 CPD ¶ 31; Phila. Produce Mkt. Wholesalers, LLC, B-298751, Dec. 8, 2006, 2006 CPD ¶ 193; SCS Refrigerated Servs., LLC, B-298790 et al., Nov. 29, 2006, 2006 CPD ¶ 186); Supp. Memorandum of Law at 13 (same). The agency is mistaken.
As an initial matter, it is not evident that the solicitations in the decisions cited by the agency included the flaw at issue here; i.e., a solicitation term that would lead offerors to believe that the “snapshot-in-time” unit pricing, rather than the proposed patron savings discount percentage, would be the basis of the agency’s award decision. In any event, none of the decisions cited by the agency address the specific issue raised here by Raymond. Accordingly, the decisions cited by the agency have no bearing on this protest.
As discussed above, the agency did not differentiate between camera resolution or image size because it regarded the term “megapixel” as a standard measure of image quality. AR, Declaration of Technical Evaluator, at 1-2. For their part, MEDI and NMS both agree that the term “megapixels” is understood to describe the number of pixels a camera sensor can capture. Declaration of Director, NMS Supplier, at 1-2; Declaration of MEDI President at ¶ 5-6. However, NMS states that no desktop micrographic view and scan product camera on the market has a camera sensor that captures an image of 25 megapixels, an assertion that the record does not contradict. Declaration of Director, NMS Supplier, at 2. In fact, the record shows that the camera sensor resolution for each firm’s scanner is 5.1 megapixels (for the NMS scanner) and 6.6 megapixels (for the MEDI scanner). Declaration of Director, NMS Supplier, at 1-2; Declaration of MEDI Vice President at ¶ 28-30. Thus, the parties must have (or should have) understood that the camera megapixels requirement was unachievable simply by use of a camera sensor, and some other method must be used to meet the minimum requirement.
In resolving this incongruity, MEDI argues that “camera resolution is stated in megapixels as the number of pixels captured by the sensor, or if [DELETED] technology is being used, the megapixels stated is the total number of pixels that is captured by the camera when using [DELETED] technology.” Declaration of MEDI President ¶ 5-6. Thus, in addition to the definition articulated by both MEDI and NMS, linking megapixels to the camera sensor, MEDI would add the use of “[DELETED];” a concept that is not apparent from the face of the solicitation. MEDI also asserts that linking the megapixels requirement to the camera sensor would permit [DELETED], as it captures various images of unique pixel data, but would exclude interpolation. See Declaration of MEDI Vice President at ¶ 32-34.
There is nothing apparent from the terms “camera” and “megapixels” that would render the agency’s interpretation of the specification unreasonable. Even if we were to credit MEDI’s and NMS’ interpretations of the relevant terms, we are left with one interpretation, which ties the megapixels requirement to the camera sensor; a requirement apparently no one in the industry could meet, and another interpretation that permits use of techniques apart from the camera sensor itself to achieve the agency’s megapixel requirement. As the record shows that the relevant terms are open to interpretation, this raises the question of whether the solicitation is ambiguous.
An ambiguity exists if a specification is susceptible to more than one reasonable interpretation that is consistent with the solicitation, when read as a whole. Poly-Pacific Techs., Inc., B-293925.3, May 16, 2005, 2005 CPD ¶ 100 at 3. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle. Ashe Facility Servs., Inc., B-292218.3, B-292218.4, Mar. 31, 2004, 2004 CPD ¶ 80 at 11. Where a patent ambiguity is not challenged prior to the submission of proposals, we will dismiss as untimely any subsequent challenge to the meaning of the term. 4 C.F.R. § 21.2(a)(1); U.S. Facilities, Inc., B-293029, B-293029.2, Jan. 16, 2004, 2004 CPD ¶ 17 at 10.
Superior also protests that the agency failed to follow the solicitation in evaluating ECS’s past performance. Specifically, Superior notes that Section M of the solicitation provided that, in evaluating past performance, the agency would “focus its inquiries on the offeror’s (and major subcontractor’s) record of performance,” and defined “[m]ajor subcontractor” as one “expected to perform ten percent or more of the proposed effort.” RFP § M.4.0, at 67. Superior asserts that notwithstanding this definition of major subcontractor, in evaluating ECS’s past performance, the agency improperly considered the past performance of subcontractors that will be performing less than 10 percent of the proposed effort.
The protester complains that the solicitation is vague and ambiguous, such that offerors are unable to understand what is being procured and how proposals will be evaluated. Protest at 5-6. In this regard, the protester contends that the RFP does not define commercial soft shelter systems and fails to specify performance requirements for the shelters. Id. at 7. SEK also argues that the identification of some characteristics and features of the shelter systems as “to be vendor determined (TBVD)” does not allow for a rational evaluation. Id. at 9-10; Comments at 12-13. The protester further complains that, although the RFP solicits commercial items, the solicitation provides for testing based upon military specifications. Protest at 11.
As a general rule, the contracting agency must give offerors sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. C3, Inc., B-241983.2, Mar. 13, 1991, 91-1 CPD ¶ 279 at 3. A solicitation’s evaluation factors and subfactors must be tailored to the acquisition in question. FAR § 15.304(a). However, there is no legal 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. Sunbelt Properties, Inc., B-249469 et al., Nov. 17, 1992, 92-2 CPD ¶ 353 at 4. The determination of the agency’s needs and the best method of accommodating them is primarily within the agency’s discretion. Premiere Vending, B-256437, June 23, 1994, 94-1 CPD ¶ 380 at 7. Agencies enjoy broad discretion in the selection of evaluation factors, and we will not object to the use of particular evaluation criteria or an evaluation scheme so long as the factors used reasonably relate to the agency’s needs. Leon D. Dematteis Constr. Corp., B-276877, July 30, 1997, 97-2 CPD ¶ 36 at 3-4.
Here, the RFP provides offerors with sufficient information and detail to allow offerors to seek award of a contract. Contrary to the protester’s apparent belief, the solicitation identified a number of performance requirements that proposed shelters must satisfy. For example, offerors were informed that the shelters must be a commercial product constructed from a lightweight fabric that is water, mildew, and flame resistant fabric. RFP amend. 4, at 12. Offerors were also informed that the shelter must satisfy flame resistant requirements in accordance with ASTM-D6413, conform to OSHA requirements, be designed to be repairable by the user in the field, and include printed instructions attached to the inside surface of the end fabric transport covers. Id. at 16-17; RFP amend. 6, append. B, Shelter Test Data Sheet, Rev. B, at 4-6. Although a number of other requirements were left to the offerors to determine, the solicitation contemplates that offerors will propose their own product lines that encompass numerous shelters meeting the solicitation’s minimum identified requirements. Allowing offerors to define certain characteristics and features of their commercially available shelters was intended to permit the inclusion of many different types of shelters on the various contracts, which could later be viewed by DLA customers to identify shelters meeting their needs. RFP amend. 4, at 18.
We find, as explained in detail below, that the solicitation is patently ambiguous with respect to whether glucometers were required to be included on a vendor’s FSS contract, and that ARKRAY’S protest in this regard is untimely.
Our Bid Protest Regulations contain strict rules requiring timely submission of protests. Under these rules, protests based upon alleged improprieties in a solicitation which are apparent prior to the time set for receipt of proposals must be filed prior to that time. 4 C.F.R. § 21.2(a)(1) (2013). Where a patent ambiguity is not challenged prior to submission of solicitation responses, we will not consider subsequent untimely arguments asserting the protester’s own interpretation of the ambiguous provisions. Marine Group Boat Works, LLC, B‑404277, B-404277.2, Jan. 19, 2011, 2011 CPD ¶ 23 at 4; Kellogg Brown & Root, Inc., B-291769, B‑291769.2, Mar. 24, 2003, 2003 CPD ¶ 96 at 8; Bank of Am., B‑287608, B‑287608.2, July 26, 2001, 2001 CPD ¶ 137 at 10. An offeror or vendor that chooses to compete under a patently ambiguous solicitation does so at its own peril, and cannot later complain when the agency proceeds in a way inconsistent with one of the possible interpretations. Wackenhut Servs., Inc., B-276012.2, Sept. 1, 1998, 98-2 CPD ¶ 75 at 5.
The solicitation contains a number of contradictory instructions that render the solicitation facially ambiguous. On the one hand, the solicitation states that vendors “must submit a complete price [quotation] for each NDC that applies to the Company’s pharmaceutical agent(s) in a given drug class[,]” and “must include all [NDCs] available for purchase by the Government and on the Company’s FSS contract for the quoted form and strength.” AR, Tab 4, BPA Template, at 3; Tab 8, BPA Appendix, at 1. As we discuss above, the terms NDC, pharmaceutical agent, and class, have statutory and regulatory definitions (see supra nn. 2, 8) that, as relevant here, appear to include both SMBGS test strips and glucometers. By employing terms that appear to include both test strips and glucometers, this aspect of the solicitation indicates that glucose strips and glucometers must be on the vendor’s FSS contracts.
On the other hand, as the agency urges, the solicitation only requests prices for test strips, as a “suite,” and in that regard states that all NDCs within the suite must be on the firm’s FSS’s contract. AR, Tab 8, BPA Appendix, at 1. The solicitation’s definition of “suite” does not appear to include glucometers, and in this respect the solicitation’s charts only include blocks for vendors to fill in the name, NDCs, and price for test strips, not glucometers. See id. at 2-3. Significantly, the only provisions in the solicitation that expressly address glucometers state only that vendors “must have a process to supply meters to beneficiaries at no cost” and that they must be TAA-compliant. See id. at 1. Moreover, as the agency argues, the solicitation describes a process under which the agency will not order glucometers under the BPA. Thus, the solicitation also reasonably indicates that the glucometers would not be required to be on the vendor’s FSS contract.
The record here also indicates that, at the time that ARKRAY prepared and submitted its quotation, the protester interpreted the solicitation as not requiring that glucometers be listed on its FSS contract--contrary to the position it now takes. The protester provided a declaration from ARKRAY’s Vice President stating that ARKRAY was prepared to quote a price for a particular test strip model, but “specifically decided” that it could not include that test strip in its suite of test strips, “because the [corresponding] meter was not TAA-compliant at the time ARKRAY made its offer.” Protester’s Comments, 2nd Declaration of ARKRAY Vice Pres., Consumer Health Div., ¶¶ 4-5, 17. This suggests that the protester decided not to quote a particular test strip--not because its glucometer was not on ARKRAY’s FSS contract--but because the glucometer was not TAA-compliant. A firm may not compete under a patently ambiguous solicitation and then complain when the agency proceeds in a way inconsistent with one of the possible interpretations. Rather, the firm has an affirmative obligation to seek clarification prior to the first due date for responding to the solicitation following introduction of the ambiguity into the solicitation. 4 C.F.R. § 21.2(a)(1); see Dix Corp., B-293964, July 13, 2004, 2004 CPD ¶ 143 at 3; Gartner Inc., B‑408933.2, B-408933.3, Feb. 12, 2014, 2014 CPD ¶ 67 at 3.
Gartner’s sole basis for protest is that DISA erred in accepting Forrester’s revised quotation because it was received by the contracting officer after the time set for submission of quotations. Protester’s Comments on Supplemental AR at 3.
It is well established that the standard for late proposals does not generally apply to requests for quotations. An RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government’s purchase order represents the offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B-248664, Sept. 10, 1992, 92-2 CPD ¶ 166 at 2. It follows that language in an RFQ requesting quotations by a certain date cannot be construed as establishing a firm closing date for receipt of quotations, absent a late quotation provision expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD ¶ 16 at 3.
Gartner argues that the standard for late quotations does not apply in this case because, according to the protester, the solicitation contained language distinguishing it from a typical RFQ. Protester’s Comments on AR, at 13. Gartner cites language in the RFQ indicating that a “contractor agrees that if its offer is accepted within 60 calendar days from the date of receipt of quotations (unless a different period is stated in the quotation), it will furnish the items and/or services identified in its quotation at the cost/price offered to the designated point(s) within the time specified in the schedule.” RFQ at 4. In Gartner’s view, this language in the RFQ advised offerors that the agency was seeking “offers” that could be “accepted” by the government and that, if “accepted,” those “offers” would be binding. Protester’s Comments on AR, at 13.
As noted above, quotations in response to an RFQ are not offers that can be accepted by the government to form a contract. See Computer Assocs. Int’l, Inc., B‑292077.3 et al., Jan. 22, 2004, 2004 CPD ¶ 163 at 3, aff’d., Computer Assocs. Int’l, Inc.‑‑Recon., B‑292077.6, May 5, 2004, 2004 CPD ¶ 110 (holding that quotations submitted in response to an RFQ for issuance of order under Federal Supply Schedule are not offers that may be accepted to form a binding contract) . Rather, they are informational responses that the government may use as the basis for issuing a purchase order. Computer Assocs. Int’l, Inc., supra. It is the government’s purchase order which represents the offer that the vendor may accept through performance or by a formal acceptance document. Id.
Pointing to the solicitation reference to a “100% duty cycle” and the pricing instruction’s request for yearly prices, the agency explains, in its report and at the hearing our Office conducted in this matter, that it was requesting under scenario 5 the prices for simultaneously running a large number of orders, each consisting of 100 TB of data, repeatedly throughout the year. COS at 28-29; Hearing Transcript (Tr.) 269-71. Because IBM’s FPR price was based on a single run processing 100 TB of data, multiplied by the specified number of orders for the period (30 for the first year), the agency used IBM’s proposed catalog pricing and the services identified in its FPR for this scenario, to adjust the firm’s price to represent 1 year of continual processing for each order.
IBM asserts that the agency’s adjustment of its scenario 5 price was unreasonable. In this regard, IBM maintains that the agency imposed an unstated requirement that each 100 TB data analytics unit provided under this scenario was to be continually repeated throughout the entire year. In contrast, under the protester’s interpretation (as reflected in its FPR), it was only required to propose a solution capable of processing a single 100 TB data run with no specified duration. IBM First Supplemental Protest at 40. IBM explains that it therefore proposed an “optimal” price for a level of services (e.g., computer capacity) with a processing time of approximately [deleted], which represented a single run of 100 TB of data. Tr. at 410.
Are orders the number of new images of that scenario type that are loaded to the image store/catalog in the year or are they the number of instantiations/runs of that scenario type in a year?
The contractor should propose commercial best practices derived from their commercially available solution(s) to provide data analytics via the MapReduce software framework to concurrent users from multiple organizations.
Without further inquiry, IBM initially priced scenario 5 at approximately [deleted], based on the specified number of orders, with 12 months of availability. Thus, IBM’s initial approach, consistent with the manner in which all other offerors in the competitive range prepared their pricing, appeared to be based upon continual 100 TB data runs throughout the year. COS at 32-33; IBM Initial Proposal at VI-17 (proposal of services at 12 months each); Tr. at 428-29 (“7/24/365” capacity approach). However, in its FPR, IBM (but not the other offerors) reduced its scenario 5 price to approximately [deleted], based on a single run for each of the specified number of orders.
Under our Bid Protest Regulations, a solicitation defect apparent on the face of the solicitation must be protested prior to the time set for receipt of initial proposals or quotations, when it is most practicable to take effective action against such defects. 4 C.F.R. § 21.2(a)(1) (2013). Furthermore, an offeror who chooses to compete under a patently ambiguous solicitation does so at its own peril, and cannot later complain when the agency proceeds in a way inconsistent with one of the possible interpretations. Wackenhut Servs., Inc., B-276012.2, Sept. 1, 1998, 98-2 CPD ¶ 75 at 5; CardioMetrix, B-274585, Nov. 18, 1996, 96-2 CPD ¶ 190 at 3; Watchdog, Inc., B-258671, Feb. 13, 1995, 95-1 CPD ¶ 69 at 5.
The protesters assert that Signet should not have received an “excellent” rating under the socio-economic evaluation factor because Signet was not a HUBZone firm at the “time of solicitation.” As set forth above, the RFQ provided that to receive an “excellent” rating, “HUBZone contractors must be certified by the Small Business Administration (SBA) at time of solicitation and at time of award.” RFQ at 38. In this regard, in a bidder’s list dated June 20, 2012, Signet was listed as a SDVOSB, but not as a HUBZone firm. AR, Exh. D.8 at 6. On July 13, 2012, however, Signet notified the agency’s small business specialist that it was certified as a HUBZone firm. AR, Exh. D.8 at 17. The SBA’s certification of Signet as a HUBZone firm is dated June 22, 2012, that is, after issuance of the solicitation but before the extended closing date of July 30. AR, Exh. D.8 at 23, Letter from SBA to Signet, June 22, 2012. Signet’s quotation was submitted on July 14, prior to the extended closing date. AR, Exh. D.3.1, Signet Quotation.
The protesters assert that the phrase “at time of solicitation” means the date on which the RFQ was issued. Thus, according to the protesters, since the RFQ was issued on June 6, 2012, but Signet was not certified as a HUBZone firm until June 22, Signet was ineligible for an “excellent” rating under the socio-economic factor.
The agency, however, maintains that the “time of solicitation” as used in the RFQ “should extend as long as the solicitation is open, which would be at least until the time proposals were due.” AR at 4. Under this interpretation, since Signet was certified by the SBA as a HUBZone firm prior to the date quotations were due, the agency argues that it complied with the solicitation. In the alternative, the agency contends that interpreting the RFQ to require certification at the time the RFQ was initially issued would serve no useful purpose and would be unduly restrictive of competition.
We agree with the agency that nothing in the RFQ required vendors to be certified as HUBZone firms at the time the solicitation was issued in order to receive an “excellent” rating for the socio-economic evaluation factor. While one interpretation of “time of solicitation” may be when the solicitation was issued, it is not the only reasonable interpretation. As a result, we conclude that the agency complied with the terms of the solicitation.
The protester contends that the agency improperly rejected its proposal based on an unreasonable reading of the solicitation's ballistic testing submission requirements. In this regard, ArmorWorks maintains that the solicitation language requiring ballistic test results demonstrating an offeror's "ability to meet the complete ballistic requirements for FAT found under specification CO/PD 04-19D, CO/PD 04-19E, or CO/PD 04-19F" merely required offerors to provide the results of the tests required by the agency for which the applicable FAT was performed. In other words, since the Marine Corps accepted first article test results that did not include the weathered and altitude tests, ArmorWorks was not required to further demonstrate compliance with these two tests.
Where a dispute exists as to the actual meaning of a particular solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all its provisions; to be reasonable, an interpretation of a solicitation must be consistent with such a reading. The Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD para. 114 at 35.
CWT's final broad set of protest contentions assert that a significant number of the solicitation's provisions are overly broad and ambiguous. Generally, a contracting agency must provide offerors with sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. AirTrak Travel et al., supra, at 12-13. A solicitation ambiguity exists where two or more reasonable interpretations of the terms of the solicitation are possible. Ashe Facility Servs., Inc., B-292218.3, B-292218.4, Mar. 31, 2004, 2004 CPD para. 80 at 10.
We have reviewed the solicitation provisions in question and conclude that, with one exception, discussed below, none of CWT's contentions has merit. CWT generally does not posit two or more reasonable interpretations of the challenged provisions. Rather, CWT argues that "it is not clear what is actually being required of the Offerors" and that this will "create great uncertainty for Offerors attempting to develop a reasonable fixed price and will lead to many disputes during the course of contract performance." Protest at 41. For example, CWT complains that the difference between an agent-assisted travel reservation service transaction and an online travel reservation service transaction is ambiguous because, according to CWT, the difference could depend on the intent of the government traveler involved with the transaction. Protest at 43.
The solicitation contains separate definitions for agent-assisted and online travel reservation service transactions that distinguish the two types of transactions. RFP sect. B.1. The solicitation also includes an appendix that provides guidance regarding the difference between the two types of transactions through eight illustrative examples. RFP app. B-1. CWT has not advanced two or more reasonable meanings of the definitions, and, in our view, the solicitation provides offerors with adequate information to distinguish between the two types of transactions for the purpose of preparing a response to the solicitation. This basis of protest, along with all but one of the other protest bases regarding alleged solicitation ambiguities, is denied.
The aspect of the solicitation that, in our view, presents an ambiguity relates to whether or not the SOW objectives are optional. As described above, the solicitation defined objectives as "functionalities, capabilities, and characteristics" that improve the overall quality of ETS2, and it stated that "[o]bjectives offered by the Contractor and accepted by the Government become mandatory requirements under any resulting contract." SOW sect. C.3.1.2. The solicitation also instructed offerors that "the Government may consider exceptions taken to [SOW] objectives" and included an attachment in which any exceptions taken were to be listed. RFP sect. E.6.3.1, attach. E‑4. CWT argues that these solicitation provisions reasonably may be interpreted to mean either that objectives are optional or that objectives are mandatory. Protest at 46-48. We agree.
The SOW's structure of mandatory requirements coupled with objectives, together with the solicitation's statement that "[o]bjectives offered by the Contractor and accepted by the Government become mandatory requirements under any resulting contract," suggest that the objectives are optional and, therefore, a proposal that takes exception to one or more objectives would not be eliminated from consideration for award on that basis alone. See SOW sect. 3.1.2. However, because the solicitation provides that "[t]here is no guarantee that GSA will accept exceptions" taken to objectives, the solicitation also suggests that objectives are not optional. See RFP sect. E.6.3.1, attach. E-4. It appears, therefore, that if the agency decides to reject an offeror's exception to an objective, then the offeror's proposal may be eliminated from consideration for award on that basis alone or, if award is made to an offeror that takes exception to one or more objectives, the agency may unilaterally require that offeror to meet the excepted objectives, notwithstanding the likelihood that the offeror's proposal would not have included a technical solution or pricing for those objectives.
On May 19, IMSI filed this protest, arguing that the terms of the RFP were improperly ambiguous with regard to surge pricing and mail volume. With regard to surge pricing, IMSI argues that the agency's statement that payment would begin upon service "execution" remains ambiguous and forces too much risk onto the contractor. With respect to mail volume, IMSI argues that the historical mail volume provided in the RFP is outdated and that it cannot meaningfully respond to the RFP unless the Army provides more recent information on the mail volume at each APO. IMSI argues that without this information it could not submit a proposal.
The Army maintains that the RFP is not improperly ambiguous regarding surge pricing, and that uncertainty over mail volumes that will occur during performance is a risk that is properly borne by the contractor.
Specifications must be sufficiently definite and free from ambiguity so as to permit competition on an equal basis. Dynamic Corp., B-296366, June 29, 2005, 2005 CPD para. 125 at 4. An ambiguity exists if a solicitation requirement is subject to more than one reasonable interpretation when read in the context of the solicitation as a whole. Phil Howry Co., B-245892, Feb. 3, 1992, 92-1 CPD para. 137 at 2-3.
IMSI's complaints do not demonstrate that there is a defect in the terms of this RFP. We agree with the Army that the RFP, as amended, plainly provides that the Army will give advance notice to the contractor before activating the surge request, and states that the contractor will be entitled to surge pricing on the first day of surge service execution. Contracting Officer's Statement at 2.
IMSI hypothesizes that the Army could intend to apply surge pricing either from the date when it gives notice that it will activate a surge request, or from the date on which the contractor performs at the surge level. Protester's Comments at 3-4. IMSI argues that the ambiguity is unfair because under the terms of the performance-based statement of work here, the contractor is "still responsible for the ultimate performance without regard to additional personnel or time required." We disagree.
If the volume of mail to be serviced exceeds the base level anticipated by the contract, the RFP provides that the Army will invoke the surge clause in order to obtain that level of service at the corresponding price. IMSI has not shown that any ambiguity about when payment will begin is outside the range of circumstances--whether ordinary or entirely unexpected--that can arise in the performance of contracts, and then requires the parties to manage by technical direction, contract modifications, exercise of options, or claims--in short, through contract administration. Accordingly, IMSI's arguments do not show that the RFP is defective simply because it does not address--to the protester's satisfaction--this particular situation.
Finally, with respect to the difference between the mail volume in the pricing matrix and the historical figures in the RFP, the protester provides no basis to question the Army's position that this data is accurate historical information, and that offerors can reasonably prepare their proposals for the higher volume in the pricing matrix by considering the overall volume requirements at each airfield, in light of the history for each APO. Contracting Officer's Statement at 3; accord. RFP amend. 19 at 3. Although IMSI argues that mail volume at individual APOs has fluctuated, and that it may continue to do so during performance, the need to adjust to fluctuations is a risk that offerors may be required to bear. It is within the discretion of an agency to impose substantial risk on the contractor and minimal administrative burden on the agency. Madison Servs., Inc., B-278962 , Apr. 17, 1998, 98-1 CPD para. 113 at 2-3. IMSI has not provided persuasive support for its claim that the risk of mail volume fluctuations at individual APOs, when compared to the historical data provided in the PWS, imposes an undue risk, or prevents fair competition for the Army's requirements.
ACE/MSC asserts that GSA improperly based its eligibility determination on the division of items ACE and MSC indicated they had available on their respective BPLs, rather than on the number of items each would be responsible for stocking in the brick-and-mortar stores, as it claims was provided for in the solicitation.
ACE/MSC's interpretation of the solicitation is based on its reading of language in amendments Nos. 2 and 3, concerning section 6.0 of the statement of work (SOW). Amendment No. 2 provided, in relevant part, that for purposes of the socio‑economic program support factor a small business partnering with a large business would not be deemed small if the large business would provide "more than 50 percent of the products under the BPL . . . ." Amend. No. 2 at 4. ACE/MSC contrasts this language with amendment No. 3, which provided that a small business teaming with a large business "may be classified as a Large Business for evaluation purposes [if] the large business [will] provide more than 50% of the products in the brick and mortar store . . . . " Sol. at 20. According to ACE/MSC, since amendment No. 3 changed the relevant reference from "more than 50 percent of the products under the BPL" to "more than 50 percent of the products in the brick and mortar stores," the agency could not base its eligibility determination on the firms' BPLs. ACE/MSC claims that its proposal otherwise showed that it would satisfy the 50 percent requirement, and that it therefore should not have been found ineligible for award.
The agency responds that it assessed team member eligibility by reviewing the BPLs to determine the percentages of products each team member would provide for stocking the brick-and-mortar stores.
We do not agree with ACE/MSC's interpretation of the solicitation. Rather, we think the solicitation was unclear as to how the agency intended to make the 50 percent determination for eligibility purposes where the BPA recipient for the eastern region was a team member. The solicitation included an evaluation provision concerning socio‑economic program support that explained how a small business concern could receive evaluation credit, Sol. at 24, and ACE/MSC's argument is based on amendments affecting that provision. However, since that provision and its amendments did not address the 50 percent calculation for purposes of the team member eligibility determination, the language of the amendments provides, at best, limited support for the protester's position. Further, the protester's argument ignores other language in section 6.0 of the SOW, unaffected by the amendments, that addressed another aspect of eligibility, stating that "The offeror who is awarded the Eastern Region with at least 50% of supplies/services (as defined by Breadth of Product Line [BPL]) will not be eligible to compete for the Western Region BPA." Thus, for purposes of this aspect of eligibility, the determination was to be based on the BPL, not the percentage of products in the brick-and-mortar stores. Since, unlike amendment No. 3, this language specifically addressed the matter of eligibility for award, we think it actually is more probative of the agency's intended approach to determining team member eligibility than the amendment language.
The key issue here is whether the protester's use of a commercial laboratory to retest the ash content of its coal was acceptable under the RFP. The agency's position is that the RFP was clear: ash content was to be demonstrated through testing at the Army TARDEC laboratory. Since BST did not have a test from that laboratory showing that its coal met the ash content standard in the RFP, its offer was unacceptable. The protester's position is that the RFP was ambiguous regarding where a retest had to be performed and that during discussions the agency led BST to conclude that retesting in a commercial laboratory was acceptable. Since it had a commercial laboratory retest showing that its coal met the ash content requirements, BST argues, its offer was acceptable.
As discussed below, we conclude that the RFP unambiguously required that ash content be tested at the Army TARDEC laboratory. Accordingly, even if the agency had indicated to BST that use of a commercial laboratory was acceptable, that advice was contrary to the clear terms of the RFP and thus could not reasonably be relied on by BST.
The RFP required two types of tests. Generally, the RFP stated that "[b]efore submitting an offer, [an] offeror shall have the coal they are offering tested by the U.S. Army TARDEC Petroleum Laboratory." RFP, SF-1449 Addendum, at 1. The RFP then stated, in the evaluation factors for award, that reports issued by the Army TARDEC laboratory would be used to determine whether the offered coal meets all requirements of the specifications. RFP at 52. The RFP also explained, however, that the Army TARDEC laboratory was not equipped to conduct tests for all specifications; thus, "offerors must submit a commercial test report, with the initial offer, indicating the mercury and chlorine content for all mines/seams proposed," and "a commercial test report is required to be submitted . . . indicating the Base/Acid Ratio and Fouling Factor for each mine/seam proposed." Id.
Read as a whole, we think that the unambiguous meaning of the RFP is that the Army TARDEC laboratory test reports would be utilized to determine compliance with all specifications stated in the solicitation, except for those specifically identified as beyond the testing capability of the Army TARDEC laboratory; for those specifications, commercial laboratory tests were required. Since ash content was not a specification that was identified as requiring a commercial test, we conclude that the RFP required that it be demonstrated on the basis of an Army TARDEC laboratory report.
BST asserts that the RFP was ambiguous because it failed to prescribe a procedure for the retest of a coal sample that initially failed to meet a minimum specification. In our view, the fact that the RFP did not specifically address the issue of a retest does not render the RFP ambiguous. On the contrary, the RFP made clear that in order for a proposal to be acceptable, an offeror had to submit a test report from the Army TARDEC laboratory showing that its coal met the RFP ash content specification. There simply is no indication in the RFP that the requirement to demonstrate compliance through a report from the Army TARDEC laboratory would change depending on the stage at which the testing for ash content occurred. The RFP makes no distinction between initial testing and, for example, a retest after an initial failure, as was the case with the protester's offered coal; regardless of the stage at which the testing occurred, the RFP called for the offerors to demonstrate compliance through an Army TARDEC laboratory report.
Based on its assertion that the RFP was ambiguous regarding the procedure for retesting, BST argues that it was reasonable for it to presume that a commercial laboratory test would be acceptable in view of statements allegedly made by agency officials during discussions suggesting that its commercial laboratory report was acceptable. This argument is unpersuasive because BST's premise is flawed. Where, as here, an RFP provision is unambiguous, an offeror may not rely on oral advice from agency officials that is contrary to the clear terms of the RFP. Spacesaver Storage Sys., Inc., B-298881, Dec. 11, 2006, 2006 CPD para. 196 at 3. Thus, even assuming that the record supported the protester's contention that during discussions the agency led it to believe that use of a commercial laboratory was acceptable, BST could not reasonably rely on such advice as it would have been contrary to the clear terms of the RFP.
In a related argument, BST argues that because DESC had received BST's updated commercial laboratory test report prior to the close of discussions on January 19, DESC was obligated to advise BST that its commercial laboratory report was inadequate. BST asserts that by remaining silent regarding the ash content retesting issue, the agency failed to conduct meaningful discussions with BST.
B-291307.3, June 30, 2004, 2004 CPD para. 150 at 6. Here, the agency specifically advised BST that the Army TARDEC laboratory report on its offered coal showed an ash content result below the minimum specifications for line item 0004, thus meeting its obligation to alert BST to the deficiency in this area of its proposal. DESC had no further obligation to review (or comment on) proposed proposal modifications submitted during the discussions period. It is the responsibility of the offeror to ensure that the areas of concern highlighted in discussions are adequately resolved in the offeror's final revised proposal. An agency is not obligated to "spoon-feed" an offeror, ITT Fed. Sys. Int'l Corp., B-285176.4, B-285176.5, Jan. 9, 2001, 2001 CPD para. 45 at 7, nor conduct successive rounds of discussions until all proposal defects have been corrected. OMV Med., Inc., B-281490, Feb. 16, 1999, 99-1 CPD para. 38 at 7.
A single award will be made on Bid Item 1 and Bid Item 2. If additional funds are available then Bid Add Alternate 1 will be added to the award. If more additional funds are available then Bid Add Alternate 2 will be added to the award. If more additional funds are available then Bid Add Alternate 3 will be added to the award. If more additional funds are available then Bid Add Alternate 4 will be added to the award. If more additional funds are available, then Bid Add Alternate 5 will be added to the award.
VA received bids from Tafoya and National. Because it determined that adequate funds were available to award the additive items, the agency calculated bidders’ prices based on all seven items. Since Tafoya’s bid was low, VA made award to Tafoya. Agency Request for Summary Dismissal (ARSD), Feb. 5, 2009, at 1. National then filed an agency-level protest, asserting that, based on its reading of the amendment 1 language quoted above, prices for the additive bid items were improperly included in the evaluated prices, and that it should have received award on the basis of its low bid for the two base items alone. Id. at 2. VA sustained the protest. Id. Tafoya then protested to our Office. In its report in response to the protest, VA indicated it had determined that its original decision to calculate bid prices based on all seven items was proper and that it was reinstating its award to Tafoya. We dismissed Tafoya’s protest on the basis of this corrective action. B‑400836, Dec. 12, 2008. By letter dated January 12, 2009, VA advised National that it was rescinding the decision sustaining its agency-level protest. Protest exh. 6. This protest followed.
National asserts that, based on its reading of amendment 1, the additive bid item prices improperly were included in the calculation of bidders’ prices and that it should have received award on the basis of its low bid for the two base items.
In interpreting solicitation language, we will read the solicitation as a whole and in a manner that gives effect to all of its provisions. CCITE/SC, B‑400782, Nov. 21, 2008, 2008 CPD para. 216 at 3. To be reasonable, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Id.
Boeing protests that one of the key discriminators relied upon by the SSA in [the SSA’s] selection decision was contrary to the RFP’s evaluation criteria. This contention concerns the significant discriminator assessed by the Air Force under the aerial refueling area of the key system requirements subfactor. The assessed significant discriminator reflects the conclusion that Northrop Grumman’s proposed aircraft exceeded to a greater degree than Boeing’s aircraft a KPP objective to exceed the RFP’s identified fuel offload to the receiver aircraft versus the unrefueled radius range of the tanker. The SSA noted in this regard that Northrop Grumman’s aircraft exceeded the threshold by [Deleted] percent at 1,000 nautical miles and by [Deleted] percent at 2,000 nautical miles, whereas Boeing’s aircraft exceeded the threshold by [Deleted] percent at 1,000 nautical miles and by [Deleted] percent at 2,000 nautical miles. AR, Tab 54, Source Selection Decision, at 5. This was a key reason supporting the SSA’s determination that Northrop Grumman’s proposed aircraft was more advantageous than Boeing’s aircraft in the aerial refueling area and was superior overall to Boeing’s. See id. at 6‑7, 9, 19.
The RFP informed offerors that the agency would evaluate the offerors’ approach to meeting the SRD requirements related to aerial refueling, which would include the fuel offload versus radius range. RFP sect. M.2.2.1.2.a. With respect to fuel offload versus unrefueled range, the RFP identified as a KPP threshold (a mandatory minimum requirement) the range that offerors must satisfy to be found acceptable. See RFP, SRD sect. 3.2.1.1.1.1. The RFP also identified as a KPP objective that the offerors’ “aircraft should be capable of exceeding” the threshold. See RFP, SRD sect. 3.2.1.1.1.2. Finally, the RFP specifically informed offerors that “[n]o consideration will be provided for exceeding KPP objectives.” RFP sect. M.2.2.1.1.a.
Boeing argues that section M.2.2.1.1.a. of RFP unambiguously prohibited crediting Northrop Grumman for exceeding the fuel offload versus unrefueled range objective to a greater extent than Boeing. Boeing asserts that this limitation on providing credit for exceeding KPP objectives “played an important role in shaping . . . how offerors designed and selected the aircraft that was proposed to meet the stated SRD requirements,” see Protester’s Comments at 14, and states that, had Boeing known of the agency’s desire for a larger aircraft which can carry more fuel, it likely would have offered the agency an aircraft based upon the 777 aircraft platform. See Protest at 2, 40.
[t]he RFP made clear that the Air Force desired maximum fuel offload at radius because it described the objective in qualitative rather than quantitative terms, thereby placing both offerors on notice that the extent to which each offeror’s proposed solution exceeded the threshold could become a potential discriminator between the offerors.
Air Force’s Memorandum of Law at 70. The agency also argues that, reading this KPP objective to exceed the fuel offload versus radius range threshold, see RFP, SRD sect. 3.2.1.1.1.2, in conjunction with the non-KPP/KSA trade space requirement that the aircraft “should operate with maximum fuel efficiency,” see RFP, SRD sect. 3.2.1.1.1.3, offerors should have known that the agency would be giving credit under this KPP objective for the degree to which the offerors would exceed the charted KPP threshold with no upward limits. See Air Force’s Request for Partial Dismissal at 17. Northrop Grumman contends that Boeing’s reading of this provision is inconsistent with the general nature of what the Air Force sought, which Northrop Grumman argues was “a greater refueling capacity, including the possibility of reducing the number of airplanes required to complete a mission.” Northrop Grumman’s Comments at 27.
Where, as here, a dispute exists as to the actual meaning of a particular solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all its provisions; to be reasonable, an interpretation of a solicitation must be consistent with such a reading. Stabro Labs., Inc., B-256921, Aug. 8, 1994, 94-2 CPD para. 66 at 4.
We find from our review of the solicitation that the offerors were unambiguously informed that their proposals would not receive additional consideration or credit for exceeding a KPP objective. This is true whether we look to the express provision itself, the meaning of which is plain, or whether we view this restriction within the context of the whole solicitation. The only reasonable interpretation of the KPP objective here is that an offeror would be credited for meeting the fuel offload versus unrefueled radius range objective if its aircraft exceeded the charted KPP threshold, and that no additional credit would be provided for exceeding the charted threshold amount to a greater degree than other proposed aircraft.
Contrary to the Air Force’s and Northrop Grumman’s positions that this KPP objective was “unbounded” because no finite number or level is stated as part of the objective, the plain language of section M.2.2.1.2.a. of the RFP unequivocally prohibited any consideration for exceeding the stated KPP objective and the RFP did not suggest that the stated objective must be finite or be at an objective level in order for this section to be applicable. To read this provision as suggested by the intervenor and agency would render meaningless section M.2.2.1.2.a, and be inconsistent with identification of an objective for this KPP threshold. See Brown & Root, Inc. and Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12, 1996, 96‑2 CPD para. 143 at 8 (a solicitation should be reasonably read to give effect to all of its provisions). We do not find such a reading reasonable.
The Air Force, as the drafter of the RFP, could have provided for unbounded consideration of the degree to which offerors exceeded the fuel offload versus unrefueled range, but did not. In fact, the last sentence in section M.2.2.1.1.a. states that “[i]f there is no objective and, depending on substantiating rationale, positive consideration will be provided when the specified capability above the KPP threshold is viewed as advantageous to the Government.” Thus, according to the RFP, “unbounded” credit could be given for exceeding the KPP where no KPP objective is stated (depending on the substantiating rationale and when advantageous to the government). Indeed, the solicitation contained a number of KPP thresholds that did not have corresponding KPP objectives, see, e.g., RFP, SRD sect. 3.2.1.6.1. (KPP No. 4, Airlift Capability); sect. 3.2.8 (KPP No. 8, Survivability), but that is not the case with respect to this KPP threshold.
We also agree with Boeing that the RFP, read as whole, established a complex set of trade-offs for offerors to consider in determining what aircraft to propose to the agency, and we do not agree that “common sense” mandates that “unbounded” refueling capabilities were being sought by the RFP. Although it is apparent that a larger aircraft could provide greater refueling capabilities, there could be associated disadvantages with respect to costs and space constraints. Thus, given that the RFP did not establish any size requirements or limitations upon the aircraft that could be proposed, the restriction on credit for exceeding this KPP objective provided offerors with a key consideration in determining what sort of aircraft to offer, as well as how to best structure their proposals.
As indicated above, the Air Force and Northrop Grumman argued that Boeing’s protest of the agency’s evaluation of the firms’ proposal under this KPP objective is untimely because it is actually a challenge to the terms of the solicitation. They base this argument upon their contention that Boeing learned of the agency’s interpretation from the agency’s briefings during the competition. However, we agree with Boeing’s contention that the agency’s briefings supported Boeing’s understanding that no credit would be given for exceeding this KPP objective. For example, in Boeing’s mid-term briefing, the Air Force reported to Boeing with regard to the aerial refueling area of the key system requirements that, although its aircraft exceeded the fuel offload versus unrefueled range and the agency identified by how much Boeing’s aircraft exceeded the range, its proposal was evaluated to have “met” the objective. See AR, Tab 129, Mid-term Briefing to Boeing, at 26. Similarly, in its pre-Final Proposal Revision Briefing, Boeing was informed that its offer to exceed the KPP threshold for this requirement was evaluated as having “met” the objective. See AR, Tab 135, Pre-Final Proposal Revision Briefing to Boeing, at 30. Based on our review of the record, Boeing was not informed in its briefings of the SSA’s and SSAC’s interpretation that the RFP allowed “unbounded” credit to be given for exceeding the fuel offload versus unrefueled radius range KPP objective, and only became aware of the agency’s interpretation from the redacted source selection decision that was provided to Boeing at its post-award required debriefing.
1. The relevant RFP provision.
In its second and final remaining claim, Greenland Contractors argues that the Air Force contravened the RFP by failing to evaluate whether the other offerors had justified their “significantly lower pricing.” See Greenland Contractors’ Mot. at 28; Greenland Contractors’ Suppl. Br. at 5. Greenland Contractors contends that the RFP required the Air Force to evaluate an offeror’s justification for significantly lower pricing, see Greenland Contractors’ Mot. at 28, and the government responds that the RFP only advised offerors to justify unique practices that resulted in significantly lower pricing, Def.’s Cross-Mot. at 47. The dispute is based upon a provision in Section M of the RFP, which provides that “[o]fferors are advised to clearly show justification for unique practices that significantly lower pricing.” AR 88-5265.11 Under the plain meaning of this provision, the Air Force was not required to evaluate whether justifications existed for significantly lower pricing generally. Instead, the RFP “advised” offerors to “show justification for unique practices that significantly lower pricing.” AR 88-5265 (emphasis added). The provision thus permitted the Air Force to evaluate whether offerors had justified unique practices that might have engendered significantly lower pricing, but not whether offerors had justified lower prices generally. As the government notes, Greenland Contractors’ interpretation of the provision would render “the words ‘unique practices’ superfluous.” Def.’s Resp. to Suppl. Brs. at 12 (citing AMP Inc. v. United States, 389 F.2d 448, 454 (Ct. Cl. 1968)).
This interpretation is consistent with the solicitation as a whole. See Banknote Corp. of Am., 365 F.3d at 1353 (noting that the court “must consider the solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its provisions”) (citing Coast Fed. Bank, 323 F.3d at 1038). The RFP called for a firm-fixed-price contract with economic price adjustment, see AR 88-5251, which “places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss,” FAR § 16.202-1. With a firm-fixed-price contract, the offeror bears the risk of proposing an unrealistically low price, not the agency. The RFP also provided for a lowest-price, technically acceptable award where price would be evaluated based only upon “[t]otal price reasonableness, affordability, and balanced pricing.” AR 88-5261 to -62.12 Unlike a price realism analysis, where the agency “investigates whether the contractor is proposing a price so low that performance of the contract will be threatened,” a price reasonableness analysis “has the goal of preventing the government from paying too much for contract work.” DMS All-Star Joint Venture, 90 Fed. Cl. at 657 n.5. The Air Force’s cost evaluation was thus directed to ensuring that prices were not too high; the RFP did not include a price realism analysis that would have required the agency to evaluate whether prices were too low. See Raymond Express Int’l, LLC v. United States, 120 Fed. Cl. 413, 422 n.4 (2015) (restricting the court’s analysis of the solicitation to price reasonableness where the solicitation did not require price realism and the plaintiff failed to identify any provision that would indicate otherwise). Because the offerors bore the risk of unrealistically low pricing and the RFP called for a price reasonableness evaluation rather than a price realism analysis, the RFP did not require an evaluation of significantly lower pricing. Rather, as the government notes, “the Air Force advised offerors that any ‘unique practices’ that significantly lower their pricing should be justified so that the Air Force c[ould] ensure that [such practices were] technically acceptable.” Def.’s Cross-Mot. at 47.
2. The Air Force’s price evaluation.
Plaintiff challenges the Army’s decision not to award it a contract on the basis that it was induced to raise its price arbitrarily. It argues that the agency’s discussion items regarding price lead plaintiff to believe that its prices were too low, effectively a weakness, and that it had no choice but to raise them. When confronted with a second round of discussion items that again raised price as an issue, plaintiff believed it was required by the Army to raise its prices a second time. This was all misleading to plaintiff because, in fact, the Army made its award determination on the opposite criteria, low price. Plaintiff was prejudiced, it argues, because it would not have raised its prices absent the government’s inclusion of low prices as a discussion item during negotiations. Without a price raise, plaintiff would have remained the lowest priced offeror and would have received an award, according to plaintiff.
Plaintiff also argues that the agency should not have been concerned with the issue of low of prices because a price realism analysis is improper in a fixed price contract unless specifically called out in the solicitation as a possibility. The risk is on the offeror, not the agency, in a fixed price scenario, and thus price realism is normally inapplicable in that context, goes plaintiff’s argument. Global further points to the FAR’s instruction regarding discussion items in a negotiated procurement, which is that the primary objective of any discussions is to “maximize the Government’s ability to obtain best value.” See 48 C.F.R. § 15.306(d)(2) (2016). Here, Global contends that the agency’s raising the issue of low prices, when it was not and could not have been concerned with low price as a performance risk was arbitrary and capricious because it did not further the goal of maximizing the best value to the government and only served to mislead plaintiff.
In its response and cross motion, defendant takes the position that the agency did not perform a price realism analysis, that is, an analysis of whether Global’s price posed a risk of non-performance. In defendant’s view, the price analysis and corresponding discussion items were merely an accurate observation and could not mislead plaintiff. Plaintiff was in fact low as compared to other offerors. The agency did not instruct plaintiff to raise its prices nor did it state that the prices were too low. It was Global’s own business judgment that resulted in plaintiff’s pricing itself out of the competition, argues defendant. It was not improper, in the government’s view, to include information regarding low prices as part of the agency’s price reasonableness determination, although neither in briefing nor at oral argument could counsel suggest a reason for the agency to have made the comment.
Intervenor takes a different tack in its briefing. It argues that the agency was concerned with performance risk posed by low prices and had preserved for itself the question of whether an offeror’s prices were too low by indicating in the solicitation that offerors were to demonstrate their understanding of performance requirements. See AR at 255, 273, 277. Intervenor believes that the agency was therefore within its rights in conducting a price realism analysis. Intervenor cites to a number of decisions from GAO that a solicitation need not invoke price realism by name so long as it otherwise indicates that the agency is concerned with the risk of nonperformance and asks for detailed price information. Intervenor argues that plaintiff’s initial price was too low and reflected Global’s lack of understanding of the solicitation’s requirements. Thus, the Army’s inclusion of low price in its discussion items was reasonable and not misleading.
Your proposal has areas of concern as detailed in the enclosed discussion Items (DIs). While the enclosed DIs are provided to facilitate discussions and provides you an opportunity to make changes to your proposal, they are not meant to point out each and every instance of error or omission in your proposal.
AR 1382. The discussion items attached to the letter contain items for each of the main evaluation factors: Technical Quality, Performance Risk, and Price. Other than being in its own section, the items regarding price were not separately called out as somehow not of concern to the agency. A reasonable reading of the Army’s negotiation correspondence is that plaintiff’s low prices were of concern to the agency.
The solicitation, however, did not invoke price realism by name or use any specific language regarding risk of nonperformance as a result of low prices. The general citation to the language in the technical provisions regarding the offerors’ understanding of performance requirements is certainly not an explicit indication that the agency would review prices for realism. Whether, as intervenor argues, the Army could have done so does not affect the result, however. Plaintiff waived any objection to the agency’s ruminations on low prices by not objecting prior to adjusting its prices. The agency did not indicate why it was passing this pricing information on to Global. Either the agency had the right to make the comments, and they were accurate, or, as Global asserts here, it had no business doing so, in which case, to avoid overreacting, Global should have inquired why the agency made the comments. In any event, Global’s decision to bump its prices up by approximately 15 percent was its own business judgment.
Having waived the issue of the propriety of the price analysis leaves plaintiff without a factual predicate to support an argument of irrationality. Plaintiff has not alleged that the mathematics performed by the Army in its price analysis was incorrect nor that the analysis itself was otherwise irrational, i.e, that taking the mean of all offers and performing a standard deviation calculation against it was unreasonable. The argument is only that plaintiff was misled in raising its prices too high. Presumably, had plaintiff raised its prices somewhat less and remained one of the five lowest-priced offerors, it would not be suggesting irrationality on the part of the agency.
Interpretation of the agency’s solicitation is a question of law for the court. See Banknote Corp., 365 F.3d at 1353; see also Contract Servs., Inc. v. United States, 104 Fed. Cl. 261, 274 (2012) (same).
“The principles governing interpretation of Government contracts apply with equal force to the interpretation of solicitations issued by the Government for such contracts.” Banknote Corp., 365 F.3d at 1353 n.4. A court must “consider the solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its provisions.” Banknote Corp., 365 F.3d at 1353; see also NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“An interpretation that gives meaning to all parts of the contract is to be preferred over one that leaves a portion of the contract useless, inexplicable, void, or superfluous.”).
“A contract is ambiguous if it is susceptible of two different and reasonable interpretations, each of which is found to be consistent with the contract language.” Community Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir. 1993); see also C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1544 (Fed. Cir. 1993) (same). “The court must consider the meaning that a reasonable person acquainted with the contemporaneous circumstances would ascribe to the document's text.” Carahsoft Tech., 85 Fed. Cl. at 339-40. That the parties disagree on the interpretation of a term is not necessarily evidence of ambiguity. See C. Sanchez and Son, 6 F.3d at 1544.
“An ambiguity is latent if it is not apparent on the face of the solicitation and is not discoverable through reasonable or customary care.” See Linc Gov’t Servs., 96 Fed. Cl. at 708. A latent ambiguity is “resolved against the government as drafter of the solicitation.” Linc Gov’t Servs., 96 Fed. Cl. at 708-09. A patent ambiguity is “present when the contract contains facially inconsistent provisions that would place a reasonable contractor on notice and prompt the contractor to rectify the inconsistency by inquiring of the appropriate parties.” Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000). Such an ambiguity is “obvious, gross, or glaring.” Archura LLC v. United States, 112 Fed. Cl. 487, 500 (2013) (citing Fulcra Worldwide, LLC v. United States, 97 Fed. Cl. 523, 538 (2011); H & M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974)).
a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.
These principles require the court to begin with the plain language of an agency’s solicitation. Banknote Corp. of Am., 365 F.3d at 1353. Unless it is manifest that another meaning was intended and understood by all parties, the text of the solicitation must be accorded its plain and ordinary meaning. Id.; ACE Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed. Cir. 2007); see Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (en banc); Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Equally important, the court “must interpret the [solicitation] as a whole and ‘in a manner which gives reasonable meaning to all its parts and avoids conflict or surplusage of its provisions.’” Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d 1348, 1353 (Fed. Cir. 2006) (quoting United Int’l Investigative Serv. v. United States, 109 F.3d 734, 737 (Fed. Cir. 1997)); see generally 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 32:5 (4th ed. 1999). An “interpretation that gives meaning to all parts of the [solicitation] is to be preferred over one that leaves a portion of the [solicitation] useless, inexplicable, void, or superfluous.” NVT Techs. Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). Context thus defines the meaning of any given term or provision in a government solicitation. See Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999).
Divergence between the parties’ subjective interpretations does not, by itself, render a solicitation ambiguous. Metric Constructors, 169 F.3d at 751; see States Roofing Corp. v. Winter, 587 F.3d 1364, 1369 (Fed. Cir. 2009). Rather, “both interpretations must fall within a zone of reasonableness.” Metric Constructors, 169 F.3d at 751. And the court must determine “whether the solicitation,” when read as a whole, “plainly supports only one reading or supports more than one reading and is ambiguous.” NVT Techs., 370 F.3d at 1159; see Gardiner, Kamya & Assocs., 467 F.3d at 1353; Banknote Corp. of Am., 365 F.3d at 1353. In other words, the court employs an objective “reasonable offeror” standard in determining if a solicitation is ambiguous. See id.
If the court concludes that ambiguity exists, the court must then determine whether the ambiguity is latent or patent. Metric Constructors, 169 F.3d at 751 (citing Newsom v. United States, 676 F.2d 647, 649–50 (Ct. Cl. 1982)). An ambiguity is latent if it is not apparent on the face of the solicitation and is not discoverable through reasonable or customary care. Input/Output Tech. Inc. v. United States, 44 Fed. Cl. 65, 72 n.10 (1999). Under the rule of contra proferentem, a latent ambiguity is resolved against the government as drafter of the solicitation. E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 2004). Contra proferentem, however, is a “rule of last resort.” Gardiner, Kamya & Assocs., 467 F.3d at 1352. The rule applies only if there is a genuine ambiguity that remains unresolved after the court examines the entire solicitation and all contemporaneous circumstances. See id.
In contrast to a latent ambiguity, a patent ambiguity in a solicitation is one that is “obvious, gross, [or] glaring.” NVT Techs., 370 F.3d at 1162. Such patent ambiguity may take the form of “facially inconsistent provisions” that would “place a reasonable [offeror] on notice” of a conflict or discrepancy. Stratos Mobile Networks, 213 F.3d at 1381. And the patency of an ambiguity is not determined by an offeror’s actual knowledge, but rather by what a reasonable offeror would have perceived. Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1999). When a solicitation contains a patent ambiguity, the offeror has “a duty to seek clarification from the government, and its failure to do so precludes acceptance of its interpretation” in a subsequent court action. Blue & Gold, 492 F.3d at 1313 (quoting Stratos Mobile Networks, 213 F.3d at 1381). A patent ambiguity is thus an exception to the general rule of contra proferentem and requires the court to resolve the ambiguity against the offeror, i.e., to adopt the government’s interpretation. Id.
Finally, if a solicitation term is susceptible to two interpretations one of which would render the solicitation unlawful, “preference will be given to that [interpretation] which does not result in violation of law.” N. Ry. Co. v. Delmar Co., 283 U.S. 686, 691 (1931); see Cole v. Burns Int’l Sec. Srvcs., 105 F.3d 1465, 1485 (D.C. Cir. 1997); 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 32:11 (4th ed. 1999). This principle, however, presupposes that a genuine ambiguity exists; otherwise, the plain meaning of the text controls. See ACE Constructors, 499 F.3d at 1361. In other words, the court may not engage in strained or twisted analysis solely for the purpose of avoiding an unlawful interpretation. ITT Arctic Srvcs. v. United States, 524 F.2d 680, 684 (Ct. Cl. 1975); see Precision Pine & Timber, Inc. v. United States, 62 Fed. Cl. 635, 645 (2004).
Guided by these fundamental principles, the court concludes that the Army calculated Total Evaluated Price—and conducted the overall price evaluation—in strict accordance with the clear and unambiguous terms of the Solicitation. The court begins by repeating some key language from the RFP. The opening section of the RFP warned offerors to “read the Evaluation [F]actors for [A]ward section [Section M] in its entirety, very carefully.” AR 2 (underlining in original). In turn, Section M specified how Total Evaluated Price would be calculated. AR 55–56. Section M provided that “[t]he total sum of all proposed unit prices for all CLINs for the base and ALL option periods will be the basis for determining the Total Evaluated Price.” Id. The immediately preceding sentence informed offerors that the “basis of award” will be this “Total Evaluated Price of the base period and three (3) six-month evaluated option periods.” AR 55.
Section M also informed offerors that the Army’s price evaluation would include a “balanced pricing” analysis. Id. In particular, Section M explained that “[u]nbalanced pricing exists when the price of one or more contract line items is significantly over or understated.” Id. Highlighting the significance of the balanced pricing analysis, the RFP warned offerors that the Army may reject any proposal that shows unbalanced pricing if this “poses an unacceptable risk to the Government.” Id.
In turn, the information provided in the price matrix corresponded perfectly to the specifications and instructions in Section M. First, the price matrix reproduced nearly verbatim the language from Section M that defined Total Evaluated Price. Compare AR 106 with AR 55–56. Specifically, the following text appeared in the bottom row of the price matrix: “TOTAL EVALUATED PRICE: (This number will be calculated by adding up the UNIT prices for ALL CLINS and ALL Base and Option Periods).” AR 106. Second, consistently with the provision in Section M for balanced pricing analysis, the price matrix defined a second price measure, Total Amount. See AR 106. As described above, the price matrix contained embedded mathematical formulae that automatically calculated the Total Amount for each CLIN and, in the bottom cell of the column (Cell J14), the Total Amount for all CLINs. See AR 106, 2101.
Looking at the Solicitation as a whole, in a manner that avoids conflict or surplusage, the court concludes that the Solicitation is susceptible to only one reasonable interpretation. See ACE Constructors, 499 F.3d at 1361; Gardiner, Kamya & Assocs., 467 F.3d at 1353. As to the text of the Solicitation, the court cannot fathom how either of the two key phrases—“total sum of all proposed unit prices,” AR 55 (Section M), and “[t]his number will be calculated by adding up the UNIT prices,” AR 106 (price matrix)—could have been any clearer or more precise. Certainly, the plain and ordinary meaning of the words “sum” and “adding up” is not susceptible to debate. And the Solicitation unambiguously defined “unit price” as the price “[p]er [d]ay [p]er [p]osition.” AR 106.
At no point during the course of this litigation did plaintiff explain how the Solicitation could have expressed more precisely the Army’s intent to calculate Total Evaluated Price as the sum of unit prices. In this regard, it is useful to view the Solicitation’s language as a point along a spectrum that ranges from perfect clarity to patent ambiguity. See Fort Vancouver Plywood Co. v. United States, 860 F.2d 409, 414 (Fed. Cir. 1988) (“When determining whether contract language is patently ambiguous, the language must be placed at a point along a spectrum of ambiguity.”). At one end of the spectrum, the meaning is perfectly clear and any additional detail would amount to worthless surplusage; at the opposite end, the meaning is patently ambiguous (or even vague) and additional language is manifestly required in order to resolve the ambiguity (or vagueness). See id. Here, any additional language in the Solicitation’s definition for Total Evaluated Price—as that definition appeared in both Section M and the price matrix—would have been worthless surplusage.
As to context, the two unambiguous and synonymous phrases defining Total Evaluated Price appeared in the two most important parts of the Solicitation: Section M, which set forth the evaluation factors for award, and the price matrix, which offerors were told would be incorporated into the awardee’s contract. See AR 49, 55–56, 106. Moreover, the interpretation that plaintiff advances is one that equates Total Evaluated Price with the Total Amount for all CLINs. Compare Pl.’s Mot. for J. at 34–35 (defining “extended prices”) with AR 106 (defining Total Amount). Yet the Solicitation provided two irreconcilable definitions for these distinct price metrics. Compare AR 55–56 with AR 106. Accordingly, to accept plaintiff’s interpretation would be to embrace, rather than avoid, a glaring conflict in the Solicitation.
The sequence of events described in the present case is indicative not only of the fact that defendant was put on notice, but that it made two unsuccessful attempts to cure the known defect. Here, as was the case in WPC Enterprises, “[t]here was a fatal insufficiency in the defendant’s effort to communicate to plaintiff that the contract was to be interpreted as the Government understood it.... Since the burden of clarification was the defendant’s, it must bear the risk of an insufficient attempt.” Id. at 10-11. Defendant Navy cannot point to Notice No. 3, nor Amendment 0008, to absolve it of its duty to notify or clarify, because an “ineffective attempt to put things right does not place the defendant in a better position.” Id. at 11. Without sufficient or adequate notice, plaintiff’s committed error is attributed to defendant.
Global Dynamics, LLC v. U. S. and Loyal Source Government Services, No. 16-1311C, January 25, 2017 Metcalf Construction Company, Inc. v. The United States, No. 02-55C, September 24, 2002.
Where, as here, a certain set of line items is expressed in a manner so different from hundreds of other line items, yielding totals disproportionate to the remainder of the solicitation, we find the differences to be “obvious, gross, [or] glaring,” H&M Moving, 499 F.2d at 671, requiring NVT to inquire. Because the solicitation was ambiguous, but any ambiguity was patent, and because it is undisputed that NVT did not inquire into such ambiguity, NVT cannot prevail.