Protest challenging agency’s decision to cancel a solicitation is denied. The agency cancelled the solicitation due to a patent ambiguity. The protester argued the solicitation was not ambiguous. GAO disagreed reasoning that the solicitation was set aside for small businesses generally but also seemed to be reserved for only HUBZone of SDVOSB concerns. The protester alleged that even if the solicitation was defective, no one complained about it, so the ambiguity must not have been prejudicial. But GAO found that regardless of whether bidders complained, the solicitation did not reflect the agency’s needs; the agency was within its rights to cancel it.
The Army Corps of Engineers issued an invitation for bids seeking construction services. The procurement was set aside for small businesses. Several companies submitted bids. The Corps disqualified the two lowest bids, finding they were not reasonable. The Corps awarded the contract to the third lowest bidder.
Young’s General Contracting and another bidder protested, alleging the Corps had performed an impermissible price realism analysis. The Corps advised that it would take corrective action by canceling the invitation for bids and resoliciting. The Corps explained that in reviewing the protest allegations it discovered a patent ambiguity in the solicitation. Specifically, the solicitation had stated that it was set aside for small businesses but it also indicated that it was set aside only for HUBZone or SDVOSBs. The Corps believed that if this ambiguity were cleared up, it would increase competition. Young’s then filed a second protest objecting to the agency’s corrective action
Young’s argued that the Corps did not need to cancel the invitation for bids because it was not ambiguous. Rather, Young’s contended, the solicitation could not be reasonably interpreted to be set aside for small businesses as both HUBZone and SDVOSB concerns.
But GAO found the solicitation patently ambiguous. One the one hand, the solicitation provided that it was set aside for small businesses. On the other, it also indicated that it was reserved for HUBZone and/or SDVOSB concerns. Given the conflicting information, it was difficult to determine who the solicitation was set aside for.
Next, Young’s argued that even if the solicitation was defective, cancellation was not warranted because other bidders had not been prejudiced by it, which was evidenced by the fact that no one objected to the conflicting set aside clauses. GAO was not persuaded by the argument. The record clearly showed the agency intended to solicit the requirement as small business set aside. Given the ambiguity, the solicitation clearly did not reflect the agency’s intent.
Young’s also argued that the agency had already received adequate competition and did not need to increase it. The Corps had received 11 bids and many of them were lower than the government estimate. Thus, Young’s contended, there was no compelling reason to open up the competition again.
Not so, said GAO. The purpose of the bid protest function is ensure that agencies obtain full and open competition to maximum extent practicable. Thus, GAO will generally favor agency actions that increase competition. Indeed, a protester is not permitted to use a protest to advocate for more restrictive rather than more open requirements.
Young’s is represented by Aron C. Beezley, Nathaniel J. Greeson, Lisa A. Markman, Patrick Quigley, and Sarah S. Osborne of Bradley Arant Boult Cummings LLP. The agency is represented by Thomas J. Warren and Edward J. McNaughton of the Army. GAO attorneys Young H. Cho and Peter H. Tran participated in the preparation of the decision.