Protest challenging the terms of a solicitation is sustained, where the protest is timely because it was filed within 10 days of the resolution of an agency-level protest, even though the solicitation closing date had passed, and where the removal of a mandatory contract clause created two reasonable interpretations concerning whether or not the procurement was set aside for competition among service-disabled veteran-owned small businesses.
Office Design Group protested the terms of the Department of Veterans Affairs’ request for proposals for furniture and installation-related services, alleging that an amendment to the RFP created an ambiguity and that the time given to respond to the solicitation was unreasonably short.
VA issued the solicitation as a total set-aside for service-disabled veteran-owned businesses. and included several clauses and provisions relating to the set-aside status. As required by Veterans Affairs Acquisition Regulation, the RFP included VAAR clause 852.219-10, VA Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside, and advised that any resulting contract would include that clause as well. The RFP also required offerors to demonstrate in their proposals how the SDVOSB subcontracting limitation would be met during performance. The limitation requires that at least 50 percent of the cost of personnel for performance of services under the resulting contract be spent on employees of the SDVOSB awardee, or another eligible SDVOSB concern.
In response to vendor concerns that SDVOSB subcontractors might not be available to perform the installation work, which would account for a significant portion of the services required under the contract, the agency amended the solicitation to remove VAAR clause 852.219-10, as well as the instructions requiring offerors to demonstrate how that clause’s requirement would be met.
Prior to the deadline for proposals, ODG emailed the contracting officer to point out that the procurement appeared to no longer be limited to competition among SDVOSBs, and to request additional time to respond in light of that change. The next day, the contracting officer responded, stating that the RFP was an SDVOSB set-aside. ODG emailed VA again, seeking clarification about the meaning of the amendment—specifically, whether it was set aside—and again requesting that the closing time be extended. Id. at 2. The contracting officer responded to ODG after the closing time for receipt of proposals had passed, stating that the RFP had closed and reasserting that the solicitation was set aside
ODG filed this protest, arguing that by deleting the VAAR clause that is required to be included in solicitations and contracts that are for set-aside for exclusive SDVOSB participation, yet continuing to indicate in the RFP that the solicitation was set aside for SDVOSBs, the agency created an ambiguity around the set-aside status of the procurement. The protester further alleged that the agency provided inadequate time to respond to the solicitation.
As an initial matter, VA argued the protest was an untimely challenge to the terms of the solicitation. According to VA, even if the solicitation were ambiguous, the ambiguity would be a patent one. However, GAO disagreed, finding that ODG’s email to the contracting officer constituted an agency-level protest. According to GAO, a letter or email does not have to explicitly state that is intended as a protest for it to be so considered; rather, it must, at a minimum, express dissatisfaction with an agency decision and request corrective action. In this case, ODG’s request for clarification was a request that the agency correct the ambiguity and conduct the procurement as an unambiguous set-aside. Because ODG filed its protest within 10 days of receiving the contracting officer’s decision on that protest, its GAO challenge is timely, even though it was filed after the closing date for proposals.
In response to the allegation that the solicitation was ambiguous, the agency argued that the protester’s interpretation of RFP amendment 02 was unreasonable, because it ignored other indicia in the RFP that made clear that the procurement is a total set-aside for SDVOSBs. The contracting officer explained that her intent with RFP amendment 02 was to remove the requirement that 50 percent of the cost of personnel for services be from a SDVOSB, as the cost of any furniture installation would have been ancillary and dwarfed by the cost of the furniture itself.
However, GAO found the amendment contained obvious errors that created a patent ambiguity as to whether the solicitation was set aside for SDVOSB competition. According to GAO, the RFP’s set-aside status was susceptible to at least two interpretations. On the one hand, the RFP indicated that it was set aside for SDVOSBs, and the RFP still included language advising that a resulting contract would include VAAR clause 852.219-1. On the other hand, an express purpose of Amendment 02 was to remove VAAR clause 852.219-10, as well as a part of FAR § 52.212-1, which instructed offerors to demonstrate in their proposals how they would meet the requirements of the (now removed) mandatory VAAR clause. Given the conflicting information in the solicitation, GAO found it impossible to determine conclusively whether the solicitation was set aside for SDVOSBs, and therefore was patently ambiguous.
Office Design Group is represented by Joseph A. Whitcomb of Whitcomb, Selinsky, McAuliffe, PC. The government is represented by Frank V. DiNicola and Tobias D. Hunziker, Department of Veterans Affairs. GAO attorneys Gabriel D. Soll and Christina Sklarew participated in the preparation of the decision.