Protest challenging agency’s corrective action is sustained. The agency initially awarded a contract to the protester. Following a protest, the agency took corrective action to reevaluate proposals believing there was a latent ambiguity in the solicitation. The court, however, found the corrective action was irrational because there was no ambiguity in the solicitation. In fact, the solicitation was clear. Offerors had not been misled. The court enjoined the corrective action, finding that the protester had been irreparably harmed by the disclosure of its price to other offerors.
The Department of Veterans Affairs published a solicitation seeking eyeglasses. The solicitation stated that it would make award to the lowest-priced technically-acceptable proposal. Six offerors submitted bids. The VA awarded the contract to Superior Optical Labs.
PDS Consultants, a disappointed bidder, protested. PDS argued that the solicitation contained a latent ambiguity. The solicitation required offerors to submit two sample sets of eyeglasses. PDS contended that it was not clear whether the solicitation required two identical sample sets of eyeglasses or one complete sample that was broken into two parts. The VA agreed that the solicitation was unclear; it took corrective action to amend the solicitation and make a new award decision.
Superior objected to the corrective action, contending that it would be unduly prejudicial for the VA to correct the ambiguity after its price had been disclosed to other offerors. The VA disclosed other offerors’ prices to mitigate the prejudice to Superior. But Superior then filed a protest with the Court of Federal Claims, challenging the corrective action.
Superior argued that the corrective action was irrational because there was no ambiguity in the solicitation to correct. The court agreed. As noted, the VA thought the solicitation was ambiguous because it could have been asking for two identical samples of offerors’ glasses or one sample split between two sets. The agency thought it was confusing to refer to one singular “sample” that consisted of two “sets.”
The court found no ambiguity. The solicitation required one submittal consisting of two sample sets of frames offered to the agency. The combination of a single submittal and plural sets was not confusing, and was, in fact, what the agency wanted. There was no reasonable interpretation of this language other than that the VA required two compete sets of frames with a single submittal. The use of the terms “submittal,” “sample,” and “sets” did not inject ambiguity. Submitted referred to the entire proposal submitted. The proposal then had to include two samples. There was no rational reason why offerors would have thought that the VA was asking for two incomplete sample sets that when combined created a full set.
The court further opined that the solicitation was not ambiguous because offerors had not been misled. None of the offerors appeared to have believed that they were supposed to submit two incomplete sets of frames. Indeed, while PDS submitted two incomplete sets of frames, the court found that this was the result of the carelessness and not any misunderstanding of the solicitation’s terms. The VA had seemingly taken PDS’s protest claims at face value without any consideration of whether they were supported by the record.
The VA attempted to argue that the corrective action was reasonable because it was taken to foster competition. PDS’s submission, the VA claimed, would have been acceptable under PDS’s reasonable interpretation of the solicitation, so the corrective action was justified as a way for the agency to get the best price.
The court rejected this, finding there was no reasonable basis for the corrective action because that was no error that needed correcting. The asserted justification for the corrective action was in error. The agency made an award to a qualified bidder and that should have been taken into account before the exposing Superior to the unfairness of reopening competition after revealing its bid amount.
The court found that an injunction stopping the corrective action was warranted. Superior had prevailed on the merits. What’s more, it had been irreparably harmed by the corrective action. Absent an injunction it would be forced to compete against offerors it had already bested. The agency had not suggested that any independent harm tipped the balance of hardships in its  favor.
Superior is represented by Robert J. Sneckenberg, Elizabeth H. Connally, John E. McCarthy Jr., and Rina M. Gashaw. The intervenor, PDS, is represented by David S. Gallacher, Emily S. Theriault, Adam A. Bartolanzo, and Daniel J. Alvarado. The government is represented by Nathanael B. Yale, Jennifer B. Dickey, Robert E. Kirschman, Jr., and Deborah A. Bynum of the Department of Justice as well as Natica C. Neely of the Department of Veterans Affairs.
