Josh Sather
Unduly restrictive competition refers to actions or policies by a procuring agency that impedes or limits free and fair competition. This can lead to higher prices, reduced innovation, and decreased quality of products and services. Additionally, requirements that restrict competition create barriers for new businesses. In government contracting, competitive prejudice occurs when challenged terms or language within a solicitation cause a competitive disadvantage or otherwise affect a contractor’s ability to compete for the award. For example, a procuring agency can require specific qualifications a contractor must obtain to be awarded a contract. However, the language regarding the qualifications must be unambiguous and cannot contradict another section within the solicitation.
Competitive prejudice is an essential element of every viable protest. The following demonstrates how contradictory and ambiguous language within a request for proposals can give rise to pre-award bid protests.
Selex ES, Inc., B-420799, September 6, 2022
The solicitation
On May 3, 2022, the Department of the Air Force issued a request for proposals (RFP) for the replacement of a man-portable tactical air navigation system (MP TACAN). This navigation system is used for aircraft landing at, or flying between, airports and airfields. The solicitation was for proposals to perform a single, fixed-price indefinite-delivery, indefinite-quantity contract where orders would be placed for a five-year base period and one two-year option period. The award would be granted based on a best-value tradeoff, with technical, technical risk, and price considerations. The only tradeoff made was between technical risk and price. Under the technical evaluation factor, all proposals would be rated acceptable or unacceptable based on six subfactors including systems requirements document (SRD) cross-reference, SRD requirements, SRD non-compliance, small business participation, delivery requirements, and contract data requirements list data rights.
When the RFP was issued, Selex ES, Inc. (Selex) contacted the Air Force to express concern regarding conflicting language and requested that the RFP be revised. The Air Force rejected the request, stating that the RFP language was clear. Selex thus filed a pre-award protest with the Government Accountability Office (GAO).
The Protest
In its protest, Selex argued that the solicitation’s language was contradictory and unduly restrictive of competition, resulting in competitive prejudice to Selex as a prospective offeror.
The Air Force argued that specific language within the statement of work (SOW) proved a lack of ambiguity. The SOW stated that an offeror only needed to meet the solicitation’s requirements at the time of the award. Additionally, the structure of the subfactor evaluation provided an avenue for an offeror to explain subfactor non-compliance. Based on these two statements within the solicitation, the Air Force contended there was no ambiguity.
However, Selex cited different language within the SOW that suggested two technical requirements were due at the time of proposal submission. Under the “timing” column of a requirements verification matrix, the flight check requirements were listed as due at the time of proposal submission. Additionally, the RFP’s evaluation scheme advised all offerors that failure to complete the flight check and readiness level requirements at the time of proposal submission could result in elimination from award consideration.
The Outcome
When a dispute exists regarding a solicitation’s actual requirements, GAO will examine the plain language of the solicitation. Questions of solicitation interpretation are resolved by reading the solicitation as a whole and in such a way that gives effect to all provisions. A language ambiguity exists when there are two or more reasonable interpretations of the terms of a solicitation.
After examining the solicitation, GAO found both arguments to have merit, as both parties cited specific language within the solicitation supporting their respective positions. Thus, both interpretations were reasonable. However, because the cited provisions were contradictory, an offeror couldn’t know whether the flight check and readiness requirements were due at the time of proposal submission or after the award.
The Air Force was required to provide enough information and clarity to enable offerors to compete intelligently and equally but failed to do so. As a result of the conflicting language, the GAO found Selex to have been competitively prejudiced. Consequently, Selex’s protest was sustained.
The Takeaway
An RFP must have unambiguous language. Otherwise, potential contractors can’t understand the solicitation’s actual requirements and compete intelligently and on a relatively equal basis. If there is an ambiguity or contradiction within the solicitation’s language, a contractor may have grounds to challenge the solicitation’s terms.
If, after reviewing a solicitation from the Government, you believe the language is unclear or sections contradict each other, contact us at Whitcomb Selinsky, PC. Our Government Contracting attorneys will evaluate and assess the contract to determine if a competitive prejudice bid protest is warranted.
