Friday, September 14, 2018

Solicitation Ambiguities Need to be Resolved Prior to the Closing Date

In a recently published Comptroller General decision, a complaint concerning an ambiguity in a solicitation was dismissed as untimely. The lack of clarity was evident from the face of the solicitation and therefore, should have been challenged prior to the solicitation's closing date.

An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error. In the case of a "patent ambiguity", an offeror may not simply make unilateral assumptions regarding the meaning of ambiguous terms and then expect relief when the agency does not act in the manner assumed. Rather, an offeror must challenge the alleged ambiguity prior to the time set for receipt of proposals.

The National Institute of Health (NIH) issued a solicitation for "IT solutions and services".  NIH received 552 proposals in response to the solicitation including one from PTP (People, Technology and Processes). After PTP was eliminated from contention, PTP filed a protest claiming that NIH used unstated evaluation criteria when evaluating proposals.

In its decision, GAO wrote:
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. 
Since the lack of clarity was evident from the face of the solicitation, the GAO found that the solicitation presented a patent ambiguity with regard to how proposals were to demonstrate the offeror's technical approach and specific methodology. Since the time to question a patent ambiguity was prior to the date of submission, the GAO denied the protest as untimely.

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