Protest challenging the agency’s failure to consider the protester’s proposal is sustained. The protester emailed its proposal to the contracting officer listed in the solicitation. The agency, however, did not consider the proposal, contending that proposals had to be submitted to a contract specialist. The protester filed a GAO protest, which was dismissed as untimely. GAO reasoned that the solicitation’s submission instructions were patently ambiguous and thus should have been challenged before the proposal deadline. The COFC, however, effectively reversed GAO. The court found that the solicitation only contained a latent ambiguity. The protester had reasonably interpreted the soliciaton instructions. If there had been confusion, it had been created by the agency when it only evaluated proposals submitted to the contract specialist. The agency erred in not considering the protester’s proposal.
Background
The State Department posted a solicitation seeking security guard services in Australia. The solicitation had perplexing submission instructions. Offerors were required to email their proposals, but the solicitation only provided a physical address as the place for receipt. Nevertheless, the soliciaton included email addresses for the contracting officer and a contract specialist. The solicitation stated the contract specialist was the contact person for offeror questions, but it did not designate anyone as the recipient of proposals.
CGS-SPP Security Joint Venture emailed its proposals to two contracting officers identified in the solicitation. But neither of those people read the email or reviewed the proposal. In fact, the State Department only evaluated proposals that had been sent to the contract specialist. Consequently, CGS-SPP’s proposal was never considered.
When CGS-SPP learned that the agency had made an award to another offeror, it filed a protest with GAO. GAO, however, dismissed the protest as untimely. GAO reasoned that the protest contained a patent ambiguity because it did not specify a recipient for proposals. Patent ambiguities, GAO reasoned, are solicitation defects that must be challenged before the proposal deadline. CGS-SPP’s post-award challenge was too late.
CGS-SPP then filed a protest with the Court of Federal Claims
Legal Analysis
- The Solicitation Contained an Ambiguity – A solicitation provision is ambiguous if it is subject to more than one reasonable interpretation. Here, the court found the submission instructions could be reasonably interpreted in different ways. The government believed the solicitation required submission to the contract specialist. This was reasonable because the solicitation stated that the contract specialist was the point of contact. But the court also noted that the FAR merely requires offerors to submit proposals so that they reach “the government office designated in the solicitation.” The solicitation did not require offerros to send proposals to any specific individual. By sending its proposal to the contracting officers, who were in the designated government office, CGS-SPP had reasonably interpreted the proposal.
- The Ambiguity Was Latent, Not Patent – A latent ambiguity is a defect that is not apparent from the face of the solicitation. Here, contrary to the GAO’s decision, the court found that the ambiguity was not obvious. The soliciatoin did not designate nor exclude any agency official as the recipient. To the extent there was confusion about where to submit a proposal, it was not necessarily apparent from the face of the solicitation. But by only considering proposals submitted to the contract specialist, the State Department had created the ambiguity itself. Because this was a latent ambiguity, CGS-SPP’s protest was timely.
- Latent Ambiguity Is Construed Against the Drafter – Courts apply the rule of contra proferentem to construe ambiguities against the drafter. The court found that CGS-SPP had reasonably interpreted the solicitation as permitting submission to the contracting officer. CGS-SPP complied with this reasonable interpretation. The court construed the ambiguity against the government. The court enjoined the award and ordered the agency to reevaluate proposals, this time considering CGS-SPP’s offer.
CGS-SPP is represented by Robert Nichols of Nichols Liu LLP. The government is represented by Joseph A. Pixley of the Department of Justice and John W. Cox of the Department of State.