Protest arguing the solicitation contained a latent ambiguity is denied, where the record showed that the protester and the agency had the same interpretation of the solicitation language, notwithstanding a mistake in the contracting officer’s statement issued during the proceedings.
DocMagic Inc. protested the Consumer Financial Protection Bureau’s award of a contract for mortgage loan compliance analysis software licenses to LogicEase Solutions Inc., arguing that the solicitation did not reflect the agency’s actual needs or, in the alternative, contained a latent ambiguity regarding the scope of services sought.
In an amendment to the solicitation responding to industry questions, the agency explained that it sought a software-as-a-service, a solution in which offerors would host the software application. After learning that it was not selected for award, DocMagic requested a debriefing, which the agency declined to provide. This protest followed.
DocMagic argued that the solicitation contained a latent ambiguity regarding which party would host the application. According to DocMagic, had it known that CFPB did not require the offeror to host the application, it would have proposed a lower-priced solution that did not include the costs of hosting. The protester identified a conflict between the solicitation’s requirement for a hosted solution and the contracting officer’s representation during this protest that the agency did not seek a hosted solution.
In response, the agency argued there is no ambiguity between the solicitation and the Q&A. Further, even if the solicitation contained a latent ambiguity, the agency argued that DocMagic could not demonstrate that it was prejudiced because the awardee proposed a hosted solution.
GAO found no ambiguity in the solicitation and Q&A, which clearly stated that offerors were required to propose a solution that included both software application licenses and application hosting. However, despite this language, during protest proceedings, the CO stated that CFPB would host the software. DocMagic pointed to this statement as evidence that either the solicitation contained a latent ambiguity or that the solicitation did not reflect the agency’s actual needs.
GAO agreed these statements conflicted, but once CFPB was notified of the discrepancy, the CO stated that she was mistaken when she said the agency would host the software application. The agency maintained there was not ambiguity in the solicitation itself.
GAO agreed, finding no evidence that the parties held differing interpretations of the solicitation, until the CO’s mistaken statement during the protest proceedings. Without evidence that the parties interpreted the solicitation differently, GAO could not find any ambiguity or prejudice to the protester.
DocMagic Inc. is represented by Dominic Iannitti and Melanie Feliciano. LogicEase Solutions Inc. is represented by Rand L. Allen, Brian G. Walsh, Cara L. Lasley, and Lindy Bathurst of Wiley Rein LLP. The government is represented by Virginia Ackerman and Mark Beaudette, Consumer Financial Protection Bureau. GAO attorneys Stephanie B. Magnell and Amy B. Pereira participated in the preparation of the decision.
