Protest challenging the evaluation of proposals is denied. The protester alleged the solicitation contained an ambiguity because it defined a term differently than that the conventional dictionary definition of that term. The court, however, reasoned that a dictionary definition cannot contradict a solicitation’s special definition of a term. Here, the solicitation’s definition was clear. There was no ambiguity. The protester also asserted unstated criteria and disparate evaluation arguments, but the court found that the agency evaluated proposals according to the terms of the solicitation.
The Food and Drug Administration (FDA) issued a solicitation seeking an automated high throughput patch clamp—a device used for testing the effects of drugs on the heart. After multiple protests and corrective actions, the FDA awarded the contract to a company called 3T. A disappointed bidder, Sophion Bioscience, Inc., filed a protest with the Court of Federal Claims.
Sophion alleged that the use of the word “throughput” in the solicitation was ambiguous. The solicitation sought devices that could achieve a “higher successful throughput.” Sophion claimed that the solicitation used the term “throughput” to describe capacity. But, the company argued, the conventional definition of “throughput” is as a measure of efficiency, that is, of the number of things that can be successfully processed. Thus, Sophion concluded, the solicitation contained a latent ambiguity, and this ambiguity should be construed against the government.
The court rejected Sopion’s argument. One cannot resort to generic definitions to contradict a definition included in the solicitation for the specific purpose at issue. Here, the solicitation clearly defined a “throughput” as “the total number of cells achieving [greater than or equal to] 1 giga-ohm seal without using seal enhancer.” Interpreting this as meaning efficiency was simply inconsistent with the plain text of the solicitation. Conventional dictionary definitions of “throughput” were unavailing. Indeed, the court noted, even if the term as used in the solicitation was ambiguous, it was a patent ambiguity that Sophion should have challenged before the proposal deadline.
Next, Sophion alleged the FDA applied unstated evaluation criteria when it prioritized a 384-well system in devices over a 48-well system. Evaluators had found that a 384-well system would be more efficient than Sophion’s 28-well system. But Sophion argued that the solicitation had not stated that a 348-well system was preferred.
The court was not convinced by this argument. The court again noted that a successful “throughput” was defined in terms of the total number of cells. Thus, the it should have been readily apparent to offerors that a 48-well system would have inherent drawbacks compared to 384-well system.
Sophion contended that the FDA disparately evaluated proposal by nitpicking the data supporting the compatibility of Sophion’s device while ignoring the fact that 3T did not provide any data. But the court did not find the evaluations unequal. The solicitation required a system that was capable of achieving a throughput on more than one of four ionic currents. Unlike 3T, Sophion submitted data showing that is device could only achieve a throughput on one ionic channel. The offerors’ approaches were thus non substantively indistinguishable as required to establish disparate evaluation.
Sophion is represented by Jonathan Perrone of Whitcomb Selinsky, PC. The government is represented by Daniel B. Volk of the Department of Justice.
