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FAR 14.208 (c):  Same information provided to all bidders

Comptroller General - Key Excerpts

CCC asserts that the agency improperly rejected its bid without reviewing its SDVOSB status under the fast track verification process set forth in the deviation clause included in the solicitation. In addition,CCC contends that it was misled into participating in this procurement by the solicitation clause, which indicates, in CCC’s view, that any apparent successful offeror--even those not currently listed in the VIP database--would be eligible for fast track verification of its status.

The VA disagrees, arguing that it issued additional guidance about its solicitation clause to address this issue. Specifically,the VA argues that the deviation clause was not intended to apply to firms not already listed in the VIP database. Thus, according to the agency, CCC is ineligible for fast track verification. We conclude that the agency’s position is inconsistent with the terms of the solicitation.

Although procuring agencies have broad discretion regarding selection of the evaluation criteria to be applied, they are required to disclose all evaluation factors and significant subfactors in order for offerors to meaningfully compete on an equal basis. An agency may not induce offerors to prepare and submit proposals based on one premise, then make source selection decisions based on another. See Hattal & Assocs.,B-243357, B-243357.2, July 25, 1991, 91-2 CPD ¶ 90 at 7.

Here, the solicitation’s deviation clause provided an opportunity for “the apparent successful offeror, unless currently listed as verified in the [VIP],” to have its SDVOSB status reviewed under the fast track process. While the agency asserts that this language was only intended to apply to firms already listed in the VIP, but not yet verified, the solicitation clause does not, on its face, indicate that qualification. Indeed, as discussed above, based on the language of the clause, even the contract specialist was prepared to include CCC in the fast track process.

We agree with CCC’s contention that the language “unless currently listed as verified” could mean either: (1) firms that are listed, but not verified; or (2) firms that are not listed at all. Thus, under the solicitation clause, either of these types of firms is entitled to a fast track verification review. Since CCC is not yet listed as verified, and since CCC is the low bidder here (i.e., is “the apparently successful offeror,” in the terms of the clause), CCC is entitled to the expedited verification review. Accordingly, we find the agency’s refusal to consider CCC’s bid under the fast track process to be inconsistent with the IFB’s evaluation criteria, and we sustain the protest on this basis.

As a final matter, we disagree with the VA’s contention that this outcome is inconsistent with our decision in FedCon RKR JV LLC,B-405257, Oct. 4, 2011, 2011 CPD ¶ 205. While we acknowledge that the situation here and the situation addressed in FedCon are similar, we think the posture of these two protesters is slightly different. FedCon argued in its filing that it was advised by VA representatives that it was listed in the VIP database, and that the contracting officer was ignoring its listing and improperly refusing to provide the company an expedited review. FedCon,supra at 3, and 4 n.7. As a result, our decision addressed the factual dispute, concluded that FedCon was not listed in the VIP database, and applied the clause as the VA argued it was intended to be applied, an interpretation to which FedCon did not object.

In contrast, CCC acknowledges that it is not yet listed,that its application is complete but pending, and that it reads the solicitation clause to provide for an expedited verification review, so long as it is “the apparently successful offeror.” We think CCC has proffered a reasonable reading of the clause, and that the VA has not shown how the bidders here could have known of the agency’s different reading. In this regard, we are concluding that the clause contained a latent ambiguity about how the agency would treat bidders who were not currently listed as verified. SeeAshe Facility Servs., Inc., B-292218.3, B-292218.4, Mar. 31, 2004, 2004CPD ¶ 80 at 10-12. We are also concluding that CCC’s view is as reasonable as the agency’s interpretation, and is not contradicted by other provisions of the solicitation.

For the record, we note that the problem arising from this ambiguity in the solicitation’s deviation clause will be short-lived. As mentioned above, after December 31, 2011, all VOSB and SDVOSB concerns must be“listed as verified” in the VIP database to receive awards under the Veterans First program. VAAR § 804.1102. As also mentioned above, all remain ingself-certified companies listed in the VIP database were either verified or denied SDVOSB status as of September 15, 2011. Supp. Agency Report at 3 n.3. In addition, the VA advises that it stopped using the solicitation deviation clause at issue in this case as of September 15. Id.  (Commandeer Construction Company LLC, B-405771, December 29, 2011)  (pdf)

It is a fundamental principle of procurement law that bidders must be treated equally by a procuring activity. An essential element of that treatment involves providing bidders with the same information concerning the agency's requirements so as to provide a common basis for the submission of bids.  (American Analytical & Technical Services, Inc., B-282277.3, August 16, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
  Commandeer Construction Company LLC, B-405771, December 29, 2011  (pdf)
  American Analytical & Technical Services, Inc., B-282277.3, August 16, 1999
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