Protest challenging a deficiency assessed to proposal is denied. The agency assessed a deficiency because the protester failed to propose a gravel driveway required by the solicitation. The protester argued that the agency had eliminated the driveway requirement in a solicitation amendment. GAO opined that the protester’s argument was likely an untimely challenge to the terms of the solicitation. In any event. GAO did not believe the amendment had eliminated the driveway requirement. The solicitation still stated that a “gravel driveway shall be provided.” The protester did not propose a driveway. The agency did not abuse its discretion by rejecting the proposal.
The Army posted a solicitation seeking to establish four IDIQ contracts for design-build construction services. The solicitation provided that as part of the evaluation, the Army would assess offerors’ approach to a “seed task order” to design and build an operations office.
KMK Construction submitted a proposal in response to the solicitation. The Army assessed KMK’s proposal a deficiency for failing to discuss construction of a gravel driveway as part of its approach to the seed task order. As a result of this deficiency, the Army found KMK’s proposal unacceptable. KMK protested.
KMK argued that the deficiency it received for not discussing the driveway was unwarranted. The solicitation had stated that a “gravel driveway shall be provided to the walkout portion of the proposed foundation.” But KMK argued that the Army had eliminated the driveway requirement in a solicitation amendment. In that amendment, an offeror had asked a question about the routing of the driveway. The Army had responded that the driveway should be provided from a basement door to the end of some retaining walls. KMK reasoned that a driveway, by its plain meaning, must connect a building to a “separate way” like a road or parking lot. Because the amendment stated that the driveway would go the retaining walls, the Army was no longer seeking a driveway, but rather a gravel pad or patio.
As an initial matter, GAO found this argument was likely untimely. GAO noted that if KMK had found the driveway specification unclear it should have filed a protest challenging the solicitation’s terms before the proposal deadline. KMK contended that the driveway specification contained a latent ambiguity and thus could be timely protested after award. While GAO agreed that the driveway specification could have been clearer, it was not latently ambiguous.
Additionally, GAO saw no problem with the agency’s assessment of deficiency. The solicitation unequivocally stated that a “gravel driveway shall be provided.” KMK conceded that it not included a driveway in its proposal. It was reasonable for the Army to find that KMK failed to understand the requirements of the project.
KMK is represented by Matthew T Schoonover, Matthew P. Moriarty, John M. Mattox II, and Ian P. Patterson of Schoonover & Moriarty LLC. The agency is represented by Jenna N. Gustafosn, Tristan Brown, and Nancye Bethurem of the Army. GAO attorneys Christopher Alwood and Christina Sklarew participated in the preparation of the decision.
