Joe Whitcomb
Ambiguity can create numerous issues. When a word, phrase or expression can be understood in two or more possible ways, misunderstandings between parties can occur. When a contractor creates a proposal for submission, it is important to use clear and concise language and avoid ambiguous words or phrases as this may lead to bid rejection. However, the responsibility does not lay solely on the contractors. The solicitor also has a responsibility to be reasonable and unbiased when reading all submitted proposals. If the solicitor unreasonably compares two bids based on an unfair interpretation of one of the bids, the contract award can be protested. In the bid protest below, the solicitor denied a proposal due to the unreasonable reading of the language used by the contractor.
Mayvin, Inc. GAO Appeals No. B-419301.6 and B-419301.7
Decision issued June 29, 2021
THE SOLICITATION
In April 2020, the U.S. Marshal Service (USMS) issued a request for quotations (RFQ) for executive, administrative, and professional support services for the USMS’s Financial Services Division. Quotations were evaluated based on price, technical approach (quality control plan, management plan, recruitment and retention plan, and transition plan), and past performance. Regarding retention, the USMS wanted to retain as many current employees as possible under the new Blanket Purchase Agreement (BPA). Technical approach and past performance, when combined, were considered significantly more important than price. Regarding price, USMS evaluated pricing for reasonableness and completeness.
In response to the solicitation, the agency received quotations from numerous vendors including Mayvin and Bennett Aerospace, Inc. (Bennett). After evaluating all proposals, USMS concluded Mayvin proposed a superior management plan, and Bennett proposed a superior recruitment and retention plan. The contracting officer (CO) concluded the benefit from Mayvin’s superior management plan was equal to the benefit from Bennett’s superior recruitment and retention plan. Regarding pricing, there was a less than two percent price difference, in favor of Bennett, between the two companies. Based on the evaluation results, the agency awarded the contract to Bennett, stating the slightly lower price was the best overall value to the government.
THE PROTEST
Mayvin protested the bid award to the U.S. Government Accountability Office (GAO). In its protest, Mayvin argued, based on its goal to retain 100 percent of qualified USMS employees and documented past retention strategies, their quotation should have received the same retention plan rating as Bennett. In its proposal, Mayvin planned to retain all current USMS staff making the following assurances:
“Team Mayvin represents a significant benefit to the USMS because our delivery team incorporates the incumbent contractor, along with all their personnel and operational knowledge.”
“Team Mayvin is the only bidder who can guarantee that 100% of all desired incumbent contractors can be retained and ready to continue work on Day One.”
“For Team Mayvin, Day One under the new BPA will be the next day at the office.”
“As a part of our Phase 2 activities, Team Mayvin will execute our Continuity Plan that ensures as many personnel as practicable remain on the job to help Mayvin assume the Prime role on the contract while maintaining continuity and consistency of services.”
In response, USMS stated the CO took issue with Mayvin’s use of “as practicable,” inferring Mayvin may not truly be committed to its goal of retaining 100 percent of USMS’s current staff because retaining those people may or may not be “practicable” for Mayvin. Due to this phrasing, Mayvin received a slightly lower score on its personnel recruitment and retention plan.
Mayvin directed USMS to its own performance work statement (PWS) that states: “[t]he Contractor shall allow as many personnel as practicable to remain on the job to help the successor maintain the continuity and consistency of the services required by this contract.” Mayvin’s inclusion of the words “as practicable” was in direct response to this portion of the PWS.
However, the government maintained the use of “as practicable” in Mayvin’s proposal made it “ambiguous” as to whether Mayvin’s actual goal was to retain 100 percent of the current personnel. Adding, it is the contractor’s responsibility to ensure its quotation is clear and consistent. The government believed Mayvin’s failure to ensure this phrase was consistent with the rest of the proposal justified the government’s position, regardless of the language used in the PWS.
THE OUTCOME
When read in context, Mayvin simply mirrored a portion of the language found in the PWS. Mayvin was not creating an ambiguity as to whether its goal was to retain 100 percent of current personnel. The GAO noted Mayvin assured the government of this goal at least five different times in the bid. The government could not rely on one single phrase drawn from the PWS to argue that the other five unequivocal statements of a 100 percent retention goal could not be taken at face value.
When viewed in this fuller context, the GAO concluded the government’s evaluation of Mayvin and Bennett’s bids was unreasonable and prejudicial to Mayvin. Based on its decision, the GAO recommended USMS reevaluate quotations in a manner consistent with the GAO decision and make a new selection decision.
THE TAKEAWAY
The government cannot act unreasonably when evaluating the language used in a proposal. While clear and consistent language is certainly important when drafting a proposal, the government cannot turn down a stellar proposal simply because it has picked apart the language and read “ambiguities” into the text. Although the government has discretion in awarding a bid, it cannot act arbitrarily or unreasonably.
If you feel the government’s decision to award a contract to a competitor whose proposal is substantively no different than your own or even less favorable to the government than yours, you may be able to protest the award. Please contact us, Whitcomb Selinsky has a team of experienced small business government contract attorneys ready to help.
