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To win government contracts, request clarification of ambiguous language

In Safeguard Base Operations, LLC v. United States, 2019 WL 3789887 (July 2, 2019), a protest to the U.S. Court of Federal Claims (COFC), the procurement was for dormitory services for the Federal Law Enforcement Training Center, U.S. Department of Homeland Security. The agency rejected an initial proposal because the submitter (and eventual protestor) failed to include in its price proposal several government-supplied “plug numbers”—i.e., pre-priced items for two contract line items (CLINs) X007AA and X007AB from the solicitation schedule.

Positions of the parties

The protestor argued that the solicitation did not require offerors to price CLINs X007AA and X007AB while defendant and defendant-intervenor argued that the terms of the solicitation and amendments required offerors to price CLINs X007AA and X007AB. The protestor relied upon the descriptions in Schedule of Supplies/Services for CLINs X007AA and X007AB, which stated “*****DO NOT SUBMIT PRICING FOR THESE CLINS*****.” The protestor asserted that “[t]his explicit direction” was never altered in any of the five amendments to the Solicitation.” The protestor further argued that the RFP statement, “please include” the list of not-to-exceed amounts for CLINs X007AA and X007AB, was a “suggestion” that was “precatory rather than mandatory” and “cannot be a basis for disqualifying proposals as noncompliant.”

Rationale for deyning protest

In denying the protest, the COFC first relied on Federal Circuit decisions stating the interpretation of a solicitation is a question of law.

[“]We begin with the plain language of the document. The solicitation is ambiguous only if its language is susceptible to more than one reasonable interpretation. If the provisions of the solicitation are clear and unambiguous, they must be given their plain and ordinary meaning; we may not resort to extrinsic evidence to interpret them. Finally, we must consider the solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its provisions.[”]

The COFC then interpreted the disputed RFP language in the context of the solicitation. The COFC reasoned that the solicitation’s statement “DO NOT SUBMIT PRICING FOR THESE CLINS [CLINs X007AA and X007AB],” when read in the context of the entire solicitation, indicated to offerors that offerors should not submit their own independent pricing for CLINs X007AA and X007AB. Rather, the offerors, when preparing their price proposals, were to use the government “pre-priced” ceiling or not-to-exceed amounts provided in the RFP for CLINs X007AA and X007AB.

The COFC held the rejection of the protestor’s initial proposal was proper without holding discussions about the protestor’s missing CLINs where the agency had forewarned offerors that it could make award on the initial proposals. Under the FAR provision 52.212-1(g), the agency may not waive “material errors,” and “[t]his Court has repeatedly recognized that pricing omissions—like the ones that occurred here—are material errors.” Absent such information, the COFC agreed with the government that these pricing omissions were material solicitation deviations that disabled the agency from making an “apples-to-apples” comparison of the protestor’s total price with other offerors’ total prices, which included the government-provided CLINs.

Requests for proposals (RFPs) can be polite

One interesting aspect of this COFC decision was whether the instruction to “please include” the missing plug number CLINS created grounds for a deficiency. The COFC observed:

As the Second Circuit stated in Weaver v. Axis Surplus Ins. Co., 639 Fed. Appx. 764, 767 (2d Cir. 2016), “[a] demand may be couched in the customarily-used polite language of the day.”  . . .  Similarly, here, the word “please,” by itself, is not sufficient to render Amendment 0003’s pricing instructions precatory.

Lessons learned

There are two lessons for offerors from this COFC decision. First, if key RFP language could be unclear or ambiguous, make a prompt request for clarification from the agency point of contact well in advance of the closing date when possible. Second, assume that politely worded RFP instructions on the contents of proposal can form a basis for proposal rejection.

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.

© 2019

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Tuesday, 15 October 2019

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