Protest alleging that a solicitation amendment created a latent ambiguity is dismissed as untimely, where the protester asked the agency to clarify the issue and therefore the ambiguity was patent and should have been challenged prior to the deadline for proposals, and protest challenging the agency’s technical evaluation is dismissed for lack of standing, where the protester was the highest-priced of the 11 technically acceptable proposals, and therefore would not be in line for award under the LPTA procurement.
DCR Services & Construction Inc. protested the Army’s award of construction services IDIQ contracts to six companies, challenging the agency’s evaluation of select awardees’ proposals and alleging that the solicitation contained a latent ambiguity that resulted in disparate treatment of the offerors’ proposals.
First, DCR argued the RFP contained a latent ambiguity. The protester explained that it interpreted Amendment 0006, and its associated attachments, to require offerors to include cap rates for a quality control manager and site safety health officer, and that this interpretation resulted in DCR increasing its price for one project to an amount that was higher than the six lowest-priced proposals. DCR also argued that the Army’s interpretation—that offerors were not required to staff all positions identified in Amendment 0006 and its associated attachments—could not have been discovered until after award.
DCR also noted that it asked the Army to clarify whether it required offerors to use the cap rates and staffing for all positions identified in the project and to actually staff the project with the named personnel on the bid sheets of Amendment 6. DCR received no direct response to this specific inquiry.
GAO rejected this challenge as untimely. Because the protester requested clarification from the agency on this issue, it is clear that any ambiguity was patent, not latent, and should have been challenged prior to the closing date for proposals
GAO also rejected the remaining challenges for lack of standing, finding that DCR is not an interested party. The agency made award to the six lowest-priced, technically acceptable offerors, but DCR’s was the highest-priced of the 11 technically acceptable proposals. Thus, one of the four other offerors would be in line for award if DCR’s challenge were successful.
DCR Services & Construction Inc. is represented by David l. Hayden and Jackson W. Moore, Jr. of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP. Outside the Box LLC is represented by David A. Rose of The Rose Consulting Law Firm, LLC. The government is represented by Captain Jeremy D. Burkhart and Brenda S. Quinn, Department of the Army. GAO attorneys Lois Hanshaw and Christina Sklarew participated in the preparation of the decision.
