This article is an excerpt from the 2023 edition of The Art of Tendering: A Global Due Diligence Guide.
As recent U.S. Government Accountability Office (GAO) cases illustrate, technical issues can trigger disputes over tender compliance, particularly when the timing or substance of those technical requirements is not clearly defined in solicitation documents.
For example, in its August 2021 decision in Northrop Grumman Systems Corporation–Mission Systems, the GAO ordered the government to either perform a re-evaluation or redraft and re-tender its solicitation after finding that the winning bidder was not properly evaluated for technical compliance. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Navy for an aircraft-mounted jamming system for low band radar. The dispute turned on the timing of the stated requirement. The complainant alleged that “the agency misevaluated the awardee’s proposal” since “the proposal did not demonstrate compliance with a material solicitation requirement” at the time of evaluation.
The GAO considered whether the RFP asked bidders to meet the requirement in the present tense, meaning during bid evaluations, or whether the technical requirement had to be met in the future tense, meaning after award as part of contract performance. While the Department argued that the RFP asked for the requirement to be met as part of contract performance, the GAO disagreed and found that, as drafted, the RFP called for the technical requirement to be met as part of the evaluation:
…the error is the agency’s failure to properly assess L3Harris’s failure to comply with the requirement to provide a design approach that “meets” the cSPS-1128 specification threshold requirements. In other words, per the terms of the solicitation, L3Harris was required to demonstrate a compliant approach in its proposal, not after award.
The GAO concluded that the original evaluation and award decision was unreasonable since the winning proponent did not meet the requirement at the time of evaluation. The GAO ordered the Department to either re-evaluate for technical compliance in accordance with the original RFP rules, or if those technical requirements were not intended to inform the evaluation process but were only intended to inform future contract performance, that it redraft and re-tender the RFP to clarify those intentions.
Similarly, in its September 2022 decision in Selex ES, Inc., the GAO ordered a re-evaluation after finding ambiguity in the timing of a technical requirement. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Air Force for the development of a portable tactical air navigation system. The complainant argued that the technical requirements contained in the RFP were unduly restrictive to competition because they could be interpreted as requiring bidders to meet the navigation system’s flight check qualification and readiness levels at the time of proposal submission, rather than after award during contract performance. The Department argued that the requirements were not part of the evaluation and only had to be met after contract award.
The GAO found that both interpretations were reasonable since the contradictory terms in the RFP ultimately rendered the timing of the disputed technical requirements inherently ambiguous:
On this record, we find that the RFP contains obvious conflicting information that creates an ambiguity as to whether the flight check and readiness level requirements are due at the time of proposal submission or after award. Based on the discrepancies found in the solicitation, we conclude that both the Air Force and the protester have produced reasonable interpretations of due dates for the requirements at issue.
The GAO concluded that the complainant was prejudiced by the patent ambiguity in the RFP:
Therefore, given the conflicting provisions in the solicitation, it is impossible for offerors such as the protester to know whether the flight check and TRL8/MRL9 requirements are due at time of proposal submission or after award. Because, as discussed below, we find the protester was competitively prejudiced by this patent ambiguity within the solicitation, we sustain the protest. Moreover, until the solicitation is amended to unambiguously reflect when the requirements at issue are due, we need not address the protester’s allegation that the solicitation terms are unduly restrictive of competition, because that claim is premised on the protester’s assumption that the solicitation expects the requirements at issue to be due at the time of proposal submission—an interpretation that is called into question by the ambiguous solicitation terms discussed above.
The GAO ordered the Department to redraft and reissue its RFP with clearer timing requirements.
In addition to being subject to challenge based on the timing issues, technical requirements can also be challenged based on the interpretation of their substantive meaning. For example, in its November 2021 decision in WRG Fire Training Simulation Systems, Inc., the GAO ordered a re-evaluation after finding that the winning proposal failed to provide for a restroom within the required “permanent structure”. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Navy for live-fire and damage control training.
The complainant argued that the winning bid was technically unacceptable since it did not provide for a restroom in a “permanent structure” as required in the RFP. However, the winning bidder argued that its restroom trailer met the RFP “permanent structure” requirement since the trailer was placed on concrete piers with its tires elevated from the ground so that it was no longer mobile:
As the awardee-intervenor, MITAGS explains that the photographed restroom trailer was “situated at our facility by lifting it with a forklift and placing it on four concrete piers located along the restroom trailer’s axle and center of gravity” (MITAGS does not represent that the trailer was “mounted” to the concrete piers). Intervenor’s Supp. Comments, attach. 1, Decl. of MITAGS’s Asst. Dir. of Bus. Dev. at 1. MITAGS maintains that the concrete piers are not visible in the agency’s inspection photographs “because the tire is blocking their view.” Id. MITAGS further explains that in addition to the non-visible concrete piers, it placed concrete “blocks with jacks at each corner of the restroom trailer for leveling purposes, but not for load bearing purposes.” Id. These concrete blocks appear to be visible in the agency’s inspection photographs. See 2nd Supp. Protest, exh. 5 at Photos 1-3. MITAGS provides that it also placed “wooden boards” under the trailer’s tires “as a safety precaution against a possible tripping hazard” because the tires “were no longer on the ground.” Intervenor’s Supp. Comments, attach. 1, Decl. of MITAGS’s Asst. Dir. of Bus. Dev. at 1. MITAGS maintains that, after its placement on the various piers and blocks, the restroom trailer “was no longer mobile and could not be moved without removing the concrete piers.”
The GAO was not persuaded by the winning bidder’s argument and ultimately found that “the agency has failed to offer evidence (contemporaneous, or during the protest) to rebut the protester’s assertion that the trailer was not permanent.” The GAO ordered a re-evaluation to address the uncertainty arising out of the original technical evaluation.
Similarly, in its May 2022 decision in Chicago American Manufacturing LLC, the GAO ordered a re-evaluation after determining that the government improperly assessed the technical compliance of the winning bidder. The dispute dealt with a Request for Quotations (RFQ) issued by the Department of the Army for new furniture. The complainant argued that the Department improperly evaluated the awardee’s quotation for metal bunkbeds, which were required to accommodate 80-inch-long mattresses, as technically acceptable. As the GAO summarized, the issue turned on discrepancies between the technical data sheets provided in the winning bid and the technical details contained in the final contract:
At issue here is the discrepancy between the description of the bed in the technical data sheets provided with Inovo’s quotation and the description of the bed on Inovo’s FSS contract. As noted above, the RFQ required a metal bunkbed that “[s]hall accommodate [a] 38”W x 80”L mattress.” AR Tab 4(b), RFQ, amend. 1, attach. 2, FID at 141. CAM argues that the dimensions of the bed on the awardee’s schedule did not meet the RFQ requirements, while the bed described in Inovo’s quotation did. Supp. Protest at 2, comparing Protest, exh. 5, Excerpt from Inovo’s FSS Catalog, at 3, (describing Inovo’s FSS Schedule bed, model No. IN-SB3019, as 78 inches long and 38 inches wide) with AR, Tab 6(f), Inovo Technical Quotation, Best and Final, at 131 (describing that same model number bed as [DELETED] inches long, [DELETED] inches wide, and [DELETED] inches high). CAM contends that the bed on Inovo’s schedule–at 78 inches long–would not accommodate the required 80-inch long mattress. Supp. Protest at 2. The intervenor asserts that its quoted bed complies with the RFQ and that “CAM relies on the generic description Inovo provides in its GSA FSS contract” as the basis for the protester’s claim that Inovo’s bed does not satisfy the RFQ’s requirement.
After finding that the specifications in the final contract were inconsistent with the original RFQ requirements, the GAO sustained the protest and ordered the Department to make a new contract award decision after performing a re-evaluation.
As these cases illustrate, the lack of precision in drafting technical solicitation requirements can lead to significant downstream risks to the defensibility of evaluation and award decisions. Purchasing institutions should ensure that their technical requirements are clear and capable of proper interpretation. Further, once those requirements are set, evaluators should ensure that they carefully interpret and enforce those requirements during the evaluation and award process.
