(h) Multiple awards. The Government may accept any item or group of items of an offer, unless the offeror qualifies the offer by specific limitations. Unless otherwise provided in the Schedule, offers may not be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit price offered, unless the offeror specifies otherwise in the offer.

FAR § 52.212-1. The final paragraph of the RFP quoted the following NAVSUP clause:
Single Award For All Items (JAN 1999) (NAVSUP):

Due to the interrelationship of supplies and/or services to be provided hereunder, the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered. Therefore, offerors proposing less than the entire requirement may be determined to be unacceptable.

(sections deleted)

B. Did the RFP Authorize Split Awards?

The basic issue in this case is relatively straightforward – did the RFP authorize the Navy to make a split award here – or not? Plaintiff asserts that the RFP unambiguously indicates that the award will be made to a single offeror for all four ports. It argues that the Navy deviated from the RFP’s terms when it made the split award. Defendant, however, contends that the RFP provided the Navy with an option – allowing it to make either an award to a single offeror or to split the award, depending on which was in the best interests of the Navy. Defendant argues that while the Navy originally intended to issue a single contract, it changed its mind – as it was permitted to do under the RFP – based on the CO’s recognition that considerable savings could be realized by splitting the award. The latter approach, defendant asseverates, did not vary from the terms of the RFP.

“It is hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.” Banknote Corp., 56 Fed. Cl. at 386; see also NEQ, 88 Fed. Cl. at 47; PGBA, LLC v. United States, 60 Fed. Cl. 196, 207, aff’d, 389 F.3d 1219 (Fed. Cir. 2004). This requirement is rooted in the Competition in Contracting Act (CICA) and the FAR, both of which indicate that an agency shall evaluate proposals and assess their qualities solely based on the factors and subfactors specified in the solicitation. See 10 U.S.C. §§ 2305(a)(2)(A)-(3)(A); 48 C.F.R. §§ 15.303(b), 15.305(a); see also NEQ, 88 Fed. Cl. at 47; ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 66 (2001), aff’d, 30 Fed. Appx. 995 (Fed. Cir. 2002). If the agency changes any evaluation criterion after issuing the solicitation, it must amend the solicitation and notify the offerors of the changed requirement. See 48 C.F.R. § 15.206(a); see also id. § 15.206(d); Elec. Data Sys., LLC v. United States, 93 Fed. Cl. 416, 430 (2010); SP Sys., Inc. v. United States, 86 Fed. Cl. 1, 18 (2009). Consistent with these precepts, in a case such as this, a protestor must show that: (i) the procuring agency used a significantly different basis in evaluating the proposal than was disclosed; and (ii) the protestor was prejudiced as a result – that it had a substantial chance to receive the contract award but for that error. Elec. Data Sys., 93 Fed. Cl. at 430; Banknote Corp., 56 Fed. Cl. at 386-87.

So what does the RFP here disclose about the number of contracts to be awarded? We begin, as we must, with the RFP’s plain language. Banknote Corp., 365 F.3d at 1353; see also Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (en banc). “If the provisions of the [RFP] are clear and unambiguous,” the Federal Circuit has stated, “they must be given their plain and ordinary meaning; we may not resort to extrinsic evidence to interpret them.” Banknote Corp., 365 F.3d at 1353. In addition, a RFP should be interpreted in a manner that harmonizes and gives reasonable meaning to all its parts. Id. “Provisions of a contract must be so construed as to effectuate its spirit and purpose.” Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991); see also Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999). An interpretation that gives a reasonable meaning to all provisions of a solicitation thus is preferable to one that leaves a portion of it useless or inexplicable. Gould, Inc., 935 F.2d at 1274; see also Fulcra Worldwide, LLC v. United States, 2011 WL 286250, at *15 (Fed. Cl. Jan. 31, 2011); Linc Gov’t Servs., LLC v. United States, 2010 WL 4484021, at *32 (Fed. Cl. Nov. 5, 2010). Context thus defines the meaning of any given term or provision in a government solicitation. Linc Gov’t Servs., 2010 WL 4484021, at *32 (citing Metric Constructors, 169 F.3d at 752); see also Fulcra Worldwide, 2011 WL 286250, at *15.

In the court’s view, the plain language of the RFP demonstrates that defendant reserved the right to award either a single contract covering all four ports, or multiple contracts covering one to three ports. In particular, the RFP included the clause found at FAR § 52.212-1, Instructions to Offerors – Commercial Items, which provides in relevant part:

(h) Multiple awards. The Government may accept any item or group of items of an offer, unless the offeror qualifies the offer by specific limitation. Unless provided otherwise in the Schedule, offers may not be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit prices offered, unless the offeror specifies otherwise.

Numerous cases have held that this clause authorizes an agency to award either a single contract or multiple contracts.

Principal among these decisions is Emeco Indus., Inc. v. United States, 485 F.2d 652 (Ct. Cl. 1973). There, the solicitation sought a contractor to manufacture 31,896 boxes. Id. at 654. Upon receiving an award to manufacture 2,713 boxes, the plaintiff assumed that it had won the contract and that this was the first of many box orders. Id. Later, however, it found that another contractor had received a contract to manufacture the remaining 29,183 boxes. Id. The plaintiff filed suit in the Court of Claims, asserting that the solicitation, as written, obliged the defendant to purchase the entire quantity of boxes from a single contractor and did not authorize a split award. This court’s predecessor rejected this argument, finding that “[a] careful reading” of the clause quoted above permitted a split award. Id. at 655. It focused, in particular, on that portion of the clause in which the Government “‘reserves the right to make an award . . . for a quantity less than the quantity offered . . . unless the offeror specified otherwise in his offer.” It noted that the “plaintiff placed no conditions on its bid,” and that, as a result, the award of only 2,713 boxes, rather than the entire quantity of 31,896, was proper. Id. A phalanx of cases has construed the multiple awards clause of FAR § 52.212-1 (or like-worded predecessor provisions) to similar effect.

Plaintiff attempts to bring this case outside this line of authority by citing several cases that have held that the mere presence of FAR § 52.212-1(h) does not authorize a split award where a solicitation otherwise anticipates an aggregate award. See Int’l Code Servs., Inc., 97-1 C.P.D. ¶ 216 (1997); Knoxville Glove Co., 93-1 C.P.D. ¶ 339 (1993); Gen. Aero Prods. Corp., 78-2 C.P.D. ¶ 70 (1978). It bravely insists that the latter is the case here, centering its claim on the evaluation mechanism in the RFP. In this regard, plaintiff trumpets that portion of the RFP which states that “the Government will award a contract resulting from the solicitation to the responsible offeror who submits the lowest total price, technically acceptable offer with acceptable or neutral past performance.” It asserts that there can only be one “lowest total price” under the RFP, a price that must necessarily correspond to all four of the ports in question.

But, this interpretation of the “total price” clause makes no sense. For one thing, it would render the multiple awards clause an absurdity, because the Navy could not sensibly make an award under that clause of “less than the quantity offered,” i.e., an award for one to three ports, if that decision had to be based upon the “total price” for all four ports. Any reliance on the latter approach would almost certainly run afoul of the CICA and FAR provisions that require agencies to include price as an evaluation factor, all of which, one would hope, require the agency to evaluate the price of what it is buying, as opposed to the “price of tea in China.”6 See 41 U.S.C. § 253a(c)(1)(B); FAR § 15.304(c)(1); see also Serco, Inc. v. United States, 81 Fed. Cl. 463, 491 (2008). It makes far more sense to read the “total price” clause as authorizing multiple awards, provided each award meets the evaluation criteria – that is, the award must go to the otherwise qualified contractor which submits the lowest total price for the lot in question.  This approach, unlike plaintiff’s strained reading, preserves the integrity of both the “multiple awards” and “total price” provisions, a result consistent with familiar canons of construction. See Gould, 935 F.2d at 1274 (“an interpretation which gives a reasonable meaning to all of its parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result.” (quoting Arizona v. United States, 575 F.2d 855, 863 (1978))); see also Spectrum Sciences & Software, Inc. v. United States, 84 Fed. Cl. 716, 735 (2008). Indeed, in analogous circumstances, several cases have held that the presence of “total price” clause in a RFP or solicitation does not prevent an agency from awarding multiple contracts. See Gichner Mobile Sys., 85-1 C.P.D. ¶ 534 (1985); Granite State Mach., 80-2 C.P.D. ¶ 396; see also SKS Group, Ltd., 82-1 C.P.D. ¶ 574 (1982).

That the Navy had the option of awarding more than one contract accords with two other provisions in the RFP. The first of these is found in the PWS, which stated that “[t]he contract is sub-divided into Lots. Lots may be for individual ports or they may include several ports under one Lot.” This language, which provides for the variable grouping of ports, makes sense only if the Navy could award more than one contract under the RFP, i.e., could “sub-divide[]” the work; it makes utterly no sense if the Navy could award only a single contract. That the RFP envisioned the former, and not the latter situation, is suggested by yet another clause in the RFP, to wit –

SINGLE AWARD FOR ALL ITEMS (JAN 1999) (NAVSUP)
Due to the interrelationship of supplies and/or services to be provided hereunder, the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered. Therefore, offerors proposing less than the entire effort specified herein may be determined to be unacceptable.

Of course, it would be passing odd to “reserve the right to make a single award” if, as plaintiff contends, the RFP only authorized the agency to make a single award. Given the common understanding of the word “reserve,” it makes eminent sense to read this provision as preserving the Navy’s option to award a single contract in the face of other RFP provisions authorizing the award of multiple contracts Viewing the RFP as affording the Navy this flexibility accords with Congress’ expectation, manifested in the CICA, that agencies will award contracts to “the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation.” 10 U.S.C. § 2305(b)(4)(C); see also Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); Friend v. Lee, 221 F.2d 96, 100 (D.C. Cir. 1955). Various cases have interpreted this legislative command to mean that “if multiple awards will be most advantageous to the Government, and they are not prohibited by the solicitation, multiple awards should be made.” Rocky Mountain Trading Co., 87-2 B.C.A. ¶ 19,725. Here, of course, the multiple awards were advantageous to the Navy in yielding the lowest cost for the husbanding services in question. And those awards were not prohibited by the RFP.  (Glenn Defense Marine (Asia), PTE, LTD v. U. S., No. 10-852c, March 1, 2011)  (pdf)