By: Eric Whytsell
A recent article discussed the important difference between patent ambiguities obvious on the face of a solicitation and latent ambiguities that only come to light after contract award. A more recent decision of the Government Accountability Office (GAO) provides an important reminder that the Q&A process, which is meant in part to identify and resolve ambiguities in the solicitation, sometimes does just that, turning what might arguably have been considered a latent ambiguity into no ambiguity at all — or making clear that the lack of clarity was patent all along. Either way, contractors need to carefully review Q&A responses and be on the lookout for those that remove potential ambiguities.
The protest in Odyssey Systems Consulting Group, Ltd., B-412519; B-412519.2 (March 11, 2016) involved the issuance by the Air Force of a small business set-aside task order for acquisition and sustainment services to P E Systems, Inc. under a request for task order proposals (RFTOP). Under the RFTOP, proposals were to be evaluated on three factors: price, technical, and past performance. As significant here, the Air Force was to evaluate the prices of the five top technically-acceptable proposals for balance, fairness and reasonableness before assessing their past performance. The agency ultimately concluded that P E Systems’ proposal offered the best value and awarded the task order.
After receiving a debriefing and responses to its questions, Odyssey Systems Consulting Group, Ltd. protested, alleging among other things that the Air Force had failed to conduct a required price realism analysis. More particularly, Odyssey claimed that the RFTOP required the agency to conduct a price realism analysis of total prices and that the agency failed to undertake this analysis. Odyssey contended that P E Systems’ low evaluated price resulted from its application of unrealistically low overhead and profit rates to its compensation rates – which would have been revealed by the required price analysis.
In response, the Air Force argued that the RFTOP provided only for a limited realism analysis of proposed professional salaries, which the agency did conduct. In support of its position, the agency pointed to the RFTOP’s provision that proposed compensation would be evaluated in accordance with Federal Acquisition Regulation (FAR) clause 52.222-46–Evaluation of Compensation for Professional Employees in order to “determine if the compensation level proposed is unrealistically low or not in reasonable relationship to the various labor categories.”
GAO sided with the Air Force, noting that, while the RFTOP initially provided only that “[p]rice will be evaluated for balance, fairness, and reasonableness,” the agency had made clear in a Q&A response that it would evaluate a portion, but not all, of the pricing for realism: “The Government will evaluate offerors[’] proposed Executive/Professional Compensation Plan . . . to determine if the compensation level proposed is unrealistically low or not in reasonable relationship to the various labor categories.” GAO’s explanation of its reasoning is particularly telling. It found that “to the extent there was any ambiguity in the underlying solicitation as to the scope of the price realism analysis contemplated, it was resolved prior to the date set for receipt of initial proposals” because the Q&A question identified the issue and the Air Force’s response was unambiguous. In addition, as reflected by the submission of the question, “any ambiguity as to the scope of the intended realism analysis was patent” so that Odyssey’s protest on this point was untimely in any event. For this reason, GAO dismissed this protest ground.
It has always been important for offerors to carefully review Q&A responses from the procuring agency in order to learn of any changes to the solicitation so they can alter their proposals accordingly. This decision identifies another good reason to ensure you have a good understanding of the Q&A responses: so you can properly gauge what grounds are valid for a protest. It may be that the facts were not quite so clear cut as the decision suggests, at least in the protester’s assessment. But if Odyssey had paid more attention to the Air Force’s Q&A response, they may have decided not to protest based on an ambiguity that had already been resolved.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2016