Singleton argues that the agency “did not properly evaluate
Singleton’s past performance by failing to take into account
past performance information regarding Singleton’s subcontractor
who would perform major or critical aspects of the
solicitation’s requirements.” Protest at 4. In this regard, the
protester points out that Federal Acquisition Regulation (FAR)
sect. 15.305(a)(2)(iii) states that a past performance
“evaluation should take into account past performance
information regarding predecessor companies, key personnel who
have relevant experience, or subcontractors that will perform
major or critical aspects of the requirement when such
information is relevant to the instant acquisition.” The
protester also points out that the RFP did not state that the
agency would not consider the past performance of proposed
subcontractors in evaluating past performance, and that our
Office has previously found that the past performance of a
proposed subcontractor may be considered in determining whether
an offeror meets experience or past performance requirements in
a solicitation where the solicitation does not expressly
prohibit its consideration. Protester’s Comments at 1, 3; see
The Paintworks, Inc., B‑292982; B‑292982.2, Dec. 23, 2003, 2003
CPD para. 234 at 3. The agency responds by pointing out
that it “never stated in the RFP that the past performance of
other than the offeror would be considered,” and that the RFP
did not specifically “request that the offerors submit past
performance information for proposed major subcontractors.”
Contracting Officer’s Statement at 7; see AR at 4. The agency
notes that our Office has recognized that FAR sect.
15.305(a)(2)(iii), cited by the protester, does not mandate that
agencies consider the past performance of subcontractors, but
only states that agencies “should” consider such information. AR
at 6, citing MW-All Star Joint Venture, B-291170.4, Aug. 4,
2003, 2004 CPD para. 98 at 4 and TyeCom, Inc., B‑287321.3,
B-287321.4, Apr. 29, 2002, 2002 CPD para. 101 at 6. The agency
thus concludes that “the only reasonable construction of the
[RFP’s] past performance evaluation clause is that only prime
contractor past performance information would be considered by
GSA in evaluating offers,” and that Singleton’s protest is an
untimely challenge of an alleged impropriety apparent from the
solicitation. AR at 5; see Bid Protest Regulations, 4 C.F.R.
sect. 21.2(a)(1) (2006). We agree with the protester that FAR
sect. 15.305(a)(2)(iii) suggests, as evidenced by the word
“should,” that agencies consider in their evaluations the past
performance of proposed “subcontractors that will perform major
or critical aspects of the requirement.” In addition, as
correctly noted by the protester, our Office has found an
agency’s consideration of a proposed subcontractor’s past
performance when evaluating an offeror’s proposal under a past
performance factor permissible in the same circumstances as
here, that is, where the solicitation neither prohibited nor
mentioned the evaluation of such information. AC Techs., Inc.,
B‑293013, B‑293013.2, Jan. 14, 2004, 2004 CPD para. 26 at 3; The
Paintworks, Inc., supra. To put it another way, our Office,
based upon applicable caselaw, statute, and regulation, would
have found it unobjectionable had the agency chosen to consider
the past performance of Singleton’s subcontractor when
evaluating Singleton’s proposal.
The fact remains, however, that the solicitation referred to the
agency’s evaluation of the “offeror’s” past performance and did
not specifically request information on the past performance of
subcontractors. Additionally, the agency is correct in pointing
out that the consideration of subcontractor past performance, as
set forth in FAR sect. 15.305(a)(2)(iii), is not mandatory.
MW-All Star Joint Venture, supra; TyeCom, Inc., supra; see
Olympus Bldg. Servs., Inc., B-282887, Aug. 31, 1999, 99-2 CPD
para. 49 at 3-4 (RFP’s past performance evaluation factor
providing that key personnel past performance would not be
considered was found to be reasonably based and not prohibited
by regulation). Although in the agency’s view the
solicitation provided that the agency would consider only the
corporate past performance information of the “offeror,” and the
agency report makes it clear that the agency intended such a
reading, we also, for the reasons stated above, find the
protester’s interpretation of the solicitation that it would
also permit the evaluation of subcontractor past performance to
be reasonable. Because we believe that both the agency’s and
protester’s interpretations of the RFP are reasonable, this
indicates an ambiguity in the RFP with respect to information
that the agency would consider in performing its past
performance evaluation. An ambiguity exists where two or more
reasonable interpretations of the terms or specifications are
possible. A party’s particular interpretation need not be the
most reasonable to support a finding of ambiguity; rather, a
party need only show that its reading of the solicitation
provisions is reasonable and susceptible of the understanding it
reached. DynCorp Int’l LLC, B‑289863; B-289863.2, May 13, 2002,
2002 CPD para. 83 at 8; Aerospace Design & Fabrication, Inc.,
B-278896.2 et al., May 4, 1998, 98-1 CPD para. 139 at 13.
(Singleton Enterprises, B-298576,
October 30, 2006) (pdf)
Here, we find that Deco's interpretation of the RFP was not
reasonable. The Taft and Hamilton buildings that Deco believed
were to be served by the "desk" have different addresses and,
more tellingly, have different postal zip codes. Although, as
Deco suggests, it is possible that two buildings might share a
common access point, such a possibility is unlikely where the
buildings are on different streets, and less likely still where
the buildings have different zip codes. Moreover, both of the
buildings were on public streets within the city of Cincinnati,
Ohio, and it would have been a simple matter for Deco to
ascertain whether the two buildings were proximately located to
confirm whether its interpretation was correct. Indeed, an
on-site inspection, consultation of a map, or a simple inquiry
through a public website would have informed Deco that the two
buildings are more than 6 miles apart. Because Deco's
interpretation of the SOW as requiring only a single security
desk for two buildings located six miles apart was not
reasonable, that interpretation provides no support for its
contention that the solicitation contained a latent ambiguity.
See Input Solutions, Inc. , B-294123, Aug. 31, 2004, 2004 CPD
185 at 3. Even if we were to find that Deco's interpretation was
reasonable, it would at best indicate a patent ambiguity, i.e. ,
one that is obvious from the face of the solicitation. In this
regard, there is an apparent conflict in the RFP between the
singular term "desk" and the requirement that the desk serve two
buildings that are at different addresses in different zip
codes. Where a solicitation contains a patent ambiguity, an
offeror is obligated to seek clarification prior to the time for
submission of proposals. Dix Corp. , B-293964, July 13, 2004,
2004 CPD 143 at 3. Where, as here, a patent ambiguity is not
challenged prior to submission of proposals, we will dismiss as
untimely any subsequent protest assertion that is based on an
alternative interpretation. Bid Protest Regulations, 4 C.F.R.
21.2(a)(1) (2004); U.S. Facilities, Inc. , B-293029, B-293029.2,
Jan. 16, 2004, 2004 CPD 17 at 10. Any protest based on an
alleged ambiguity arising from the term "desk" therefore should
have been filed prior to the time for receipt of proposals. (Deco
Security Services, B-294516, November 1, 2004) (pdf)
With respect to ISIs argument that the COs e-mail message
provided explicit direction to incorporate the terms of ISIs
earlier contract here, our reading of the email communication,
as a whole, is that it indicates only that the CO thinks ISI
should be familiar with the nature of the work and, as the
incumbent, should have sufficient information to understand the
type of work and submit a competitive quotation. While, as
quoted above, the COs message stated that the image deliverables
should be based on how you previously provided clear, readable
images for the Library, there is nothing in this general
language that imports requirements from ISIs predecessor
contract into this solicitation. Since ISIs interpretation of
the COs e-mail is unreasonable, it provides no support for ISIs
contention that the message created a latent ambiguity about the
work required under the RFQ. See Ruska Instrument Corp. ,
B-235247, Aug 7, 1989, 89-2 CPD 111 at 3. (Input
Solutions, Inc., B-294123, August 31, 2004) (pdf)
Assuming
then that both the agency’s and the protester’s interpretations
of the provision are reasonable, this indicates an ambiguity in
the RFP with respect to the price evaluation of the
indefinite-quantity items. Accordingly, we must determine
whether the ambiguity is latent or patent since, if patent, it
would have had to be protested prior to proposal submission
date. The Arora Group, Inc., B-288127, Sept. 14, 2001, 2001 CPD
¶ 154 at 7 n.5. A patent ambiguity exists where the solicitation
contains an obvious, gross, or glaring error, (e.g., where the
solicitation provisions appear inconsistent on their face),
while a latent ambiguity is more subtle. See Brickwood
Contractors, Inc., B-292171, June 3, 2003, 2003 CPD ¶ 120 at 6
(explaining a patent ambiguity as one which is obvious on its
face); Bank of Am, B-287608, B-287608.2, July 26, 2001, 2001 CPD
¶ 137 at 10 (finding patent ambiguity where solicitation terms
were in direct conflict). Since Ashe’s interpretation of the
solicitation provision did not directly conflict with any of the
other solicitation provisions and the ambiguity only came to
light in the context of the agency’s price evaluation, we
conclude that the ambiguity was latent rather than patent and
Ashe’s protest of this issue thus is timely. (Ashe
Facility Services, Inc., B-292218.3; B-292218.4, March 31,
2004) (pdf)
Ashland essentially alleges that,
either the purchase description did not require that the
bartacks be sewn through all plies after the material was
turned, or the requirement is latently ambiguous with Ashland's
interpretation representing one of two reasonable
interpretations. We disagree. The requirement unambiguously
stated that the bartacks had to go through all plies without
qualification. Since Ashland's PDM is constructed with two plies
of outer shell fabric at the location of the bartacks and the
bartacks go through only one of them, Ashland's PDM does not
comply with the requirement. In any event, the defect in
Ashland's PDM is minor. It did not raise any material concern
with the agency because it is easily corrected during
production. In fact, all of the PDM defects for all
offerors considered for award were similarly minor in nature. The
SSA recognized this and considered these PDMs to be very close;
although Ashland maintained a slight evaluated advantage, it was
not significant and did not translate into value to the
government for purposes of awarding at a higher price. Tr. at
11-13, 16 (SSA); Agency Report, Tab 15, Source Selection
Decision, at 5. We find reasonable the SSA's assessment of the
evaluated PDM differences between these proposals. (Ashland Sales and Service Company,
B-291206, December 5, 2002, (sustained on another issue) (pdf)
We have reviewed the entire
solicitation, including the website containing the Guide Plates,
and conclude that the RFP contained a latent ambiguity that
materially affected how offerors prepared their proposals, and
resulted in an unequal competition. An ambiguity exists where
two or more reasonable interpretations of the terms or
specifications of the solicitation are possible. Moreover, a
party's particular interpretation need not be the most
reasonable to support a finding of ambiguity; rather, a party
need only show that its reading of the solicitation provisions
is reasonable and susceptible of the understanding that it
reached. There are two levels of ambiguity at issue here:
first, whether the Guide Plates are mandatory or merely
discretionary; and second, what the Guide Plates require, if
they are mandatory. (The
Arora Group, Inc., B-288127, September 14, 2001) (pdf) |
