Protester Can’t Challenge Terms of Solicitation When it Elected to Compete Under a Patent Ambiguity; International Business Machines Corporation, GAO B-417596.10

85

Protest challenging the terms of a solicitation is dismissed as untimely. The protester argued that the solicitation was ambiguous and did not provide adequate information for offerors to meaningfully compete. GAO agreed with protester that the solicitation was ambiguous. But the protester elected to submit a proposal under a patently ambiguous solicitation. What’s more, in a previous a protest, the protester had challenged the agency’s interpretation of the solicitation but then abandoned those arguments. Having elected to compete in the face of an ambiguous solicitation and then abandoning a previous protest that challenged the agency’s interpretation of that ambiguity, the protester could not now assert a new protest challenging the solicitation’s terms.

The Army issued a solicitation seeking to award a task order for capability support of the agency’s enterprise resource planning systems. The procurement was conducted in three phases. Only two offerors, International Business Machines Corporation (IBM) and Accenture made it to the third phase. The Army awarded the task order to Accenture.

IBM filed a GAO protest challenging the award. Following outcome prediction ADR, the Army took corrective action to reevaluate proposals and make a new award decision.

During the corrective action, the offerors asked the Army several questions concerning a supplemental solicitation document called the Organic Lay Down. This document identified hundreds of government positions and listed details for each position. The offerors asked the Army several questions about how they were supposed to utilize the resources listed in the Organic Law Down. For the most part, the Army declined to provide any additional guidance.

Despite concerns about the Organic Lay Down, neither IBM nor Accenture filed a protest challenging the terms of the solicitation. Instead, both submitted revised proposals. In its revised proposal, IBM elected to use government resources identified in the Organic Lay Down.

The Army assigned a weakness to IBM’s approach, finding that the company had proposed using skill sets that were inconsistent with the Organic Lay Down. Due in part to this weakness, the Army again awarded the task order to Accenture.

IBM filed a second protest challenging the weakness assessed to its approach to the Organic Lay Down. The Army’s response to the protest argued that IBM’s objections to the Organic Lay Down were untimely challenges to the terms of the solicitation. In its comments on the agency report, IBM abandoned its challenge to the weakness and instead raised a new supplemental protest, contending that the Army had disparately evaluated proposals by not penalizing Accenture for proposed used of personnel identified in the Organic Lay Down.

The Army notified GAO that it planned to take again take corrective action to reevaluate proposals. IBM responded to the notice of corrective action, expressing concerns about how the Army had conducted the procurement but not objecting to dismissal of the protest as academic. Accordingly, GAO dismissed the protest.

While conducting the second corrective action, the Army once again fielded questions about the Organic Lay Down. And again, the Army refused to further explain how offerors were to use resources identified in the Organic Lay Down. IBM thus filed a third protest challenging the terms of the solicitation.

IBM contended that the solicitation did not provide adequate information for offerors to comply with the Army’s undisclosed rules for using resources identified in the Organic Lay Down, and that the solicitation was patently ambiguous with respect to the Organic Lay Down. The Army requested dismissal of the protest, arguing that IBM’s arguments were untimely challenges to the solicitation, which the company should have raised before submitting its initial bid.

GAO agreed with the Army. GAO noted that IBM was right about the terms of the solicitation: it failed on its face to provide meaningful information concerning the Organic Lay Down. This meant that IBM had elected to compete under a patently ambiguous solicitation. An offeror that chooses to compete under a patently ambiguously solicitation does so at their own peril, and cannot complain when the agency proceeds in a way inconsistent with its interpretation.

GAO further noted that IBM’s complaints about the Army’s responses offerors’ questions were also problematic. When an agency fails to clarify an ambiguous term or resolve an offeror’s questions, the offeror is required to raise its concerns prior to the proposal deadline, which IBM had not initially done.

IBM argued that it was not in a position to challenge the terms of the solicitation in its previous protests because it concerns about the solicitation were not apparent at the time. Even assuming this was true, GAO reasoned, IBM’s current arguments arose out of the same legal and factual predicate of arguments it did in fact raise in previous protests. The crux of IBM’s arguments in the previous protests had concerned the Organic Lay Down. The Army had responded to these arguments. Rather than engaging with the Army’s position, IBM abandoned its arguments and simply asserted a new disparate treatment theory. By abandoning those arguments, IBM effectively conceded any argument about the Organic Lay Down.

GAO opined that IBM’s allegations presented an improper piecemeal presentation of the issues. GAO regulations require protesters to set forth all known legal and factual grounds because the piecemeal presentation of issues unnecessarily delays the procurement process. Basically, IBM had sought clarification of the Organic Lay Down. Although the Army refused to provide that clarification, it submitted a proposal. Following award, IBM protested the Army’s interpretation of the Organic Lay Down. The Army rebutted those arguments, and IBM then abandoned its challenge. The Army then proposed corrective action. Despite expressing concerns about how the Army had handled the procurement, IBM did not object to the corrective action even though the Army did not plan to amend the solicitation. Now IBM was complaining that the Army had failed to address the very arguments it had abandoned in the previous protest.. IBM was not permitted to restart the protest clock for arguments it should have asserted long ago.

IBM is represented by Keith R. Szeliga, Adam Bartolanzo, Daniel Alvarado, and Shaunna Bailey of Sheppard, Mullin, Richter & Hampton LLP. The agency is represented by Pamela Kennerly Ignatius and Wade L. Brown of the Army. GAO attorneys Evan D. Wesser and Edward Goldstein participated in the preparation of the decision.

GAO - International Business Machines Corporation