Protest challenging the terms of a solicitation is denied. The protester alleged that the solicitation was filled with empty, nonsensical business argot—e.g., experience “at the tactical level,” the ability to “transcend beyond the status quo,” demonstration of “strong business practices”—which made the solicitation vague and prevented competition on a common basis. GAO rejected the protester’s arguments finding them a little too cute. If these phrases were read in context, it was clear what the agency sought. An agency is not required to explain every single uncertainty, and vendors are expected to use their professional expertise and judgment in interpreting evaluation criteria.
The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) posted a solicitation seeking contract and acquisition support services. A prospective offeror, Federal Acquisition Services Team Oasis JV filed a protest challenging the terms of the solicitation. Federal alleged that the evaluation criteria were too vague and thus precluded vendors from competing on a common basis.
Federal first alleged that the criteria for evaluating an offeror’s experience managing a procurement was ambiguous. To demonstrate experience, offerors had to demonstrate (1) experience “at the tactical level,”(2) “the ability to support a customer,” and (3) “the ability to independently develop and define effective . . . procurement strategies.” Federal claimed that the phrase “at the tactical level” was nonsensical, as it was neither a term of art nor commonly understood. Federal also argued that “the ability to support” was ambiguous because it could either refer to a vendor’s capabilities or actual record of success. Federal further contended that the phrase “ability to develop and define” was ambiguous because the solicitation did not identify how the agency would determine whether a vendor successfully developed and defined procurement strategies.
GAO rejected these arguments. Use of the work “tactical” was not imprecise; rather, it instructed vendors to describe a situation in which they assisted an agency in acquiring goods and services. GAO was also not persuaded by the arguments concerning the “ability to support” and the “independently develop and define” phrases. GAO reasoned that those phrases were used in the context of the agency’s intent to review a vendor’s record of performance, not potential capabilities. While Federal complained that the solicitation should include an evaluation standard to inform offeror how the ability to support and develop and define would be evaluated, GAO reasoned that level of detail was unnecessary.
Next, Federal challenged a requirement to demonstrate experience applying innovative procurement methods. The solicitation required offerors to demonstrate the use of innovative procurement techniques that allowed the agency to “transcend beyond the status quo or go beyond traditional/routine procurement tools.” Federal claimed that this criterion was too vague because the phrase “transcend beyond the status quo” was nonsensical. What’s more the agency had not defined traditional/routine procurement tools that had to be transcended.
But GAO found no reason to the object to these terms. When read together, the solicitation made clear that a prospective bidder should demonstrate experience showing that it used innovative procurement techniques on a prior contract to address large-scale procurement problems. GAO did not find the phrase “transcend the status quo” nonsensical because the phrase conveyed that a vendor would be evaluated based on the whether they demonstrated innovative procurement tools.
As to the complaint about the lack of clarity regarding traditional/routine procurement tools, GAO found that the phrase was intelligible. Vendors were plainly aware that they had to demonstrate innovative techniques. An agency is not required to explain every single uncertainty and vendors are expected to use their professional expertise and judgment in preparing a quote. Federal, as an experienced service provider, was well equipped to determine whether a procurement tool was innovative.
Federal objected to a requirement under the management factor that stated the agency would evaluate the offerors’ knowledge of management processes and tools. Federal argued that CISA was supposed to supply the tools (i.e. software applications), so the agency did not need to evaluate offerors’ defined knowledge of management processes.
GAO, however, did not find this problematic. The criterion did not require the selected contractor to create or upload a new knowledge management tools. Instead, GAO reasoned, the duties outlined in the SOW required the selected contractor to have a high-functioning management component as part of their management plan. This criterion was simply intended to evaluate any functioning management plan in the industry.
Federal also asserted that the use of the word “tools” in this section was vague and confusing. But GAO found that the solicitation reasonably conveyed that “tools” was used in the same context as certain “processes” and thus referred to a business strategy.
Federal alleged that another criterion for assessing offerors’ management plans was vague because it did not explain how CISA planned to evaluate the “quality of [the contractor’s proposed use] of subcontractors. GAO disposed of this argument reasoning that when read in conjunction with the solicitation’s instructions, this phrase simply indicated that the CISA would evaluate each vendor’s approach to selecting subcontractor and then review the quality of the subcontractor based on the application of the contractor’s methodology.
Finally, Federal contended that a provision that required offerors to demonstrate “strong business processes” and “ensure customer satisfaction” was too vague because CISA did not define those terms. GAO was unpersuaded, noting that the solicitation clearly indicated what material should be provided and how it would be evaluated. The only reasonable interpretation of these phrases was that CISA intended to evaluate whether each offerors can capably manager and ensure customer satisfaction.
Federal is represented by Erin L. Felix and Gregory S. Jacobs of Polsinelli PC. The agency is represented by Christine C. Fontenelle of the Department of Homeland Security. GAO attorneys Todd C. Culliton and Tania Calhoun participated in the preparation of the decision.
