Protest challenging the rejection of the protester’s bid is dismissed. The agency rejected the bid because it had intended to set the procurement aside for small businesses, and the protester was not a small business. The protester argued that the procurement had not been set aside for small business because it lacked some of the information required for a set aside. GAO reasoned that while the solicitation omitted some of the information required for a set aside, this did not mean the procurement was not a set-aside. Rather, it meant the solicitation had a patent ambiguity. Because the protester had not challenged this ambiguity before the bid deadline, its protest was untimely.
The Army Corps of Engineers published a pre-solicitation notice announcing an opportunity for repair and maintenance services at a pump station in Louisiana. The notice sated that the anticipated procurement would be a small business set-aside.
Following the notice, the Corps issued an invitation for bids (IFB). The IFB included the FAR provision providing Notice of Small Business Set-Aside. But the IFB did not identify the applicable NAICS code or size standard for the set aside.
Four companies submitted bids. The bid from M R Pittman was the lowest. But the Corps found that Pittman was ineligible for award because it was not a small business. Pittman protested.
Pittman argued that because the Corps failed to include the NAICS code and size standards, the solicitation could not be treated as a small business set-aside. While the pre-solicitation notice had stated that the procurement was a set-aside, Pittman contended that the notice was extrinsic to the IFB and could not be read into the IFB to create a set-aside.
GAO rejected Pittman’s. When an agency has indicated that solicitation is to be set-aside for small businesses, the agency’s failure to properly indicate in the solicitation that the procurement is a set-aside does not allow bidders to assume that the procurement is not a set aside. Rather, when there is a conflicting information about whether the procurement is set-aside, the solicitation contains a patent ambiguity. A patent ambiguity in a solicitation must be raised before the bid deadline. Pittman could not challenge the ambiguity after bid-opening.
Pittman is represented by Jonathan S. Forester of Reiss LeMieux. The agency is represented by Matthew R. Keiser and Jacob S. Stephens of the Army. GAO attorneys Christopher An and Evan D. Wesser participated in the preparation of the decision
