In a recent decision, the Government Accountability Office (GAO) held that a protestor’s failure to seek clarification of a patent ambiguity in a solicitation was fatal to the protest. The decision is an important reminder that a contractor who fails to ask questions about the terms of a solicitation does so at its own peril, even when the contractor’s interpretation of the solicitation is reasonable.
In the matter before the GAO, Protestor challenged the Defense Information Systems Agency’s (DISA) issuance of a task order for the provision of annual subscriptions for information technology research services. DISA issued the task order under a request for quotations (RFQ) to Department of Defense Software Initiative blanket purchase agreement holders. After receiving timely initial quotations from Protestor and the awardee, DISA issued a request for final quotations. Both Protestor and the awardee timely submitted revised quotations; however, the awardee subsequently submitted a second revised quotation one minute after the deadline provided in the agency’s request for final quotations.
Protestor argued that DISA improperly considered the awardee’s untimely second revised quotation. Protestor advanced two separate arguments in support of its protest. First, Protestor argued that despite calling the solicitation a request for quotations, DISA’s solicitation was actually a request for proposals subject to the standard late proposal rule. Protestor based its argument on language in the RFQ, stating that DISA was seeking “offers” that could be “accepted” by DISA within a specific time period. Alternatively, Protestor argued that the solicitation contained a late quotation provision that prohibited DISA from considering the awardee’s untimely second revised quotation.
In rejecting Protestor’s first argument, the GAO determined that the argument was based on a patent ambiguity in the solicitation that Protestor was required to raise before DISA’s issuance of the task order. GAO explained:
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. Where a patent ambiguity is not challenged prior to submission of solicitation responses, we will dismiss as untimely any subsequent protest assertion that is based on one of the alternative interpretations as the only permissible interpretation. (Citations omitted.)
Accordingly, the GAO held that Protestor’s first argument was untimely based on Protestor’s failure to raise the patent ambiguity with DISA prior to DISA’s issuance of the task order.
The GAO rejected Protestor’s second argument based on the fact that neither the RFQ nor the request for final quotations contained a provision expressly stating that the agency would not consider quotations received after the submission deadline. Thus, the GAO held that DISA’s consideration of the awardee’s untimely second revised quotation was “not inconsistent with the terms of the RFQ.”
Gartner Inc., B-408933.2; B-408933.3 (Comp. Gen. Feb. 12, 2014)
