Protest challenging agency’s evaluation and alleging disparate treatment of vendors is denied. The protester alleged the awardee was ineligible for award for failing to comply with a solicitation requirement. GAO, however, found that the required was subject to two reasonable interpretations and thus patently ambiguous. A patent ambiguity must be challenged before award, so the protester’s challenge was untimely. The protester also argued that the agency disparately evaluated proposals. But GAO found no disparate evaluation; rather, unlike the awardee, the protester’s proposal included several caveats that undermined the company’s performance claims. In light of the caveats, the agency had not erred in rating the awardee’s proposal higher.
The FBI issued an RFQ to holders of GSA’s Federal Supply Schedule for information technology. The solicitation sought wireless voice and data telecommunications services. Cellco Partnership dba Verizon Wireless and AT&T Mobility LLC submitted quotes. The FBI selected AT&T for award , finding value in its discounted price, which represented a savings of 46.5 percent compared to Verizon’s proposal. Verizon protested.
Verizon first argued that AT&T’s price as so low that the company must not have complied the RFQ’s pricing requirements. GAO found that this argument was essentially alleging that the FBA failed to conduct a price realism analysis. But the RFQ did not provide for price realism analysis, so this protest ground was denied.
Verizon next contended that the FBI should have found AT&T ineligible for award. The RFQ stated that products obtained under the contract “shall not be identified as being destined for use by the US government.” Verizon alleged that AT&T’s products were labeled as part of the government’s network and that the labeling violated the RFQ’s requirement.
The FBI argued this requirement in the RFQ was intended to address the risk of a device being intercepted during shipment and fitted with surveillance hardware or software. To this end, the FBI contended, the RFQ provision requiring that the product not identify the US government only applied to packaging and shipping.
GAO found that the both parties had offered reasonable interpretations of the provision. On the one hand, the provision mentioned “products,” which supported Verizon’s reading. On the other, the provision used of the term “destined for use,” which suggested that the restriction only applied to shipping and packaging. Because there were two reasonable interpretations, GAO found that the provision was a patent ambiguity. A challenge to a patent ambiguity must be raised as a pre-award protest. Verizon’s challenge therefore was untimely.
Verizon asserted that AT&T’s transmission coverage was too geographically limited to meet the FBI’s requirements. But the RFQ required vendors to provide maps of their coverage. While the maps had to be accurate, the solicitation did not include any specific requirements for the extent of coverage. Thus, regardless of AT&T’s coverage, Verizon had not demonstrated that the FBI’s evaluation was inconsistent with the solicitation.
Verizon alleged the FBI unreasonably assigned AT&T’s quote a signification strength for having the fastest download speeds without verifying those speeds. GAO, found the assessment of the strength reasonable. AT&T’s quote included an independent evaluation of various companies’ download speeds. This evaluation showed that AT&T’s network exceeded the solicitation’s minimum requirements and exceeded the speed of the fastest commercial carrier by over 25 percent.
Verizon alleged the FBI unequally evaluated quotes because like AT&T, Verizon offered fast download speeds but was not similarly credited for it. But GAO noted that Verizon’s proposal undermined the company’s performance claims with various caveats about the offered download speed—e.g., that network loads could impact performance. AT&T on the other showed that its proposed network worked consistently.
Lastly, Verizon contended that the FBI unequally evaluated quotes by favoring AT&T’s priority and preemption services over those offered by Verizon. The FBI, however, had found differences between proposals. Verizon’s solution, unlike AT&T’s required manual attention and extra administrative steps to enable devices.
Verizon is represented by Jason A. Carey, Kayleigh M. Scalzo, Evan R. Sherwood, Peter Terenzio III, and Brooke G. Stanley of Covington & Burling LLP. The intervenor, AT&T, is represented by Jonathan M. Baker, Daniel R. Forman, Olivia L. Lynch, and Rina M. Gashaw of Crowell & Moring. The agency is represented by Michael Giordano, Jessica Lane Day, and Catherine Chen of the Department of Justice. GAO attorneys Stephanie B. Magnell and Evan C. Williams participated in the preparation of the decision.
