By: Eric Whytsell
It is axiomatic that offerors confronted with ambiguous solicitations cannot wait for the award decision before deciding whether to protest. However, offerors continue to do just that. In the case of ARKRAY USA, Inc., B-408981.4 (Comp. Gen. March 5, 2014), the delay was perhaps understandable given relatively complicated procurement, but it nonetheless proved fatal to the protest.
The ARKRAY matter involved a procurement aimed at establishing a uniform formulary blanket purchase agreement (UF BPA) by the Department of Defense for self-monitoring blood glucose test strips. The uniform formulary is the approved list of pharmaceutical agents required by law to be available to eligible TRICARE beneficiaries.
In connection with an ongoing “class review” of self-monitoring blood glucose systems (SMBGS), the Defense Health Agency issued a solicitation inviting vendors to submit quotations for a UF BPA for pharmaceutical agents in the class under review, and, among other things, listed on the vendor’s Federal Supply Schedule (FSS) contract. Significantly, all formulary vendors provide glucometers free of charge to TRICARE beneficiaries that use the firms’ test strips.
The agency received timely quotations from five vendors and, after determining that only the test strips of Abbott Diabetes Care Sales Corporation (“Abbott”) should be included on the formulary, awarded the UF BPA to Abbott. ARKRAY protested the decision on the ground that Abbott’s glucometer is not included on its FSS contract.
Unfortunately for ARKRAY, the Government Accountability Office (GAO) never considered the merits of its FSS-based protest ground. Instead, it determined that the solicitation was patently ambiguous with respect to whether glucometers were required to be included on a vendor’s FSS contract and, because ARKRAY failed to timely protest the ambiguity, it waived the protest ground. The ambiguity resulted from the solicitation’s use of contradictory instructions – first issuing instructions that indicate that both glucose strips and glucometers must be on the vendor’s FSS contracts and elsewhere requesting pricing for a “suite” of test strips but not glucometers.
Reiterating the established rule, the decision states, “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.”
The lesson? Carefully review the solicitation and do whatever possible to resolve any potential ambiguities. If your efforts do not completely clarify the issue, protest the ambiguity prior to the time set for submission of proposals. If you sit back to see what happens with the award decision, you will be stuck with the agency’s interpretation of the provision in question.
J. Eric Whytsell is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2014