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Competitive prejudice and latent ambiguity

In a bid protest filed by SunGard Data Systems, Inc. (B-410025, Oct. 10, 2014), the Government Accountability Office (GAO) addressed whether latent ambiguity in a work statement can prejudice a bidder.


The work statement required offerors to provide software that included “the current release of IBM z/OS.” The parties did not dispute that version 2.1 was the then-latest release of IBM z/OS. However, the agency asserted (and apparently no relevant party disputed) that versions 1.12, 1.13, and 2.1 of IBM’s z/OS were currently available from and maintained by IBM. Significantly, both offerors in question proposed to perform the contract using version 1.13 of the operating system.

The protester alleged, among other things, that the solicitation provided the “Contractor shall provide the current release of IBM z/OS with the following features . . . .” The protester argued that the current release should be interpreted to mean the latest release: version 2.1. The agency argued that it interpreted this language to mean any of the then-current releases: versions 1.12, 1.13, and 2.1.

The GAO summarized the protester’s position as a challenge of the terms of the solicitation—alleging a latent ambiguity. But the GAO held that the protester had not established that it was prejudiced by the agency’s interpretation of the solicitation’s requirement because it offered the same version as the awardee.  “Because the record fails to establish that [the protester] interpreted the solicitation provisions as it now claims was required (i.e. as requiring the most current (2.1) version) [the protester] has failed to establish that it suffered any prejudice associated with the latent ambiguity it now alleges.”

Message for incumbents

The solicitation in question contemplated an award on a best-value basis taking into account the following evaluation factors (in order of descending order of importance): technical capability, experience and past performance, and price. The most important factor, technical capability, consisted of four subfactors (again in descending order of importance): technical approach, transition approach, management approach, and key personnel.

The agency assigned an acceptable rating to the protester under the transition-approach evaluation subfactor. Specifically, the agency concluded that “[a]s for the transition approach, while the offeror is the incumbent and generally would not need a robust transition plan, the offeror did not address any of the criteria requested in the solicitation. Also, this solicitation has significantly reduced and simplified requirements from the current mainframe services contract, but the offeror did not address how they would incorporate these changes as they transition onto the new contract.”

The protester asserted that because it was the incumbent to the contract, it did not need a transition plan, and it was therefore unreasonable for the agency to conclude that the protester had only a “minimal understanding” of the requirements. Because the protester’s proposal did not demonstrate its understanding or provide details of its transition approach, but simply stated that it need not propose a transition plan because it was the incumbent, the GAO concluded that the agency reasonably rated the protester’s transition approach as acceptable, rather than assessing it some higher rating.


Don’t rest on the laurels of your incumbency. Be sure to respond to the solicitation's requirements.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.


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Tuesday, 16 October 2018

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