Posted By Tom Petruska,
Friday, January 21, 2011
| Comments (0)
Protest Ambiguities; Waiver of Rights
The Boards of Contract Appeals and the Federal Courts have
developed and enforced a well-established rule that an offeror who finds a
patent ambiguity in a Request for Proposal ("RFP") must affirmatively
seek clarification from the Contracting Officer ("CO") and, if it
fails to obtain such clarification, file a pre-proposal protest.
Alternatively, some Offerors will prepare "Assumptions and
Clarifications" that are submitted, generally, with the Price Volume
explaining their interpretation of a patent ambiguity in the event they fail
to receive any satisfactory clarification from the CO. When an Offeror fails
to obtain clarification of an ambiguity pre-award, then they are
precluded from seeking relief post-award. It is important, then, that
Offerors vigorously pursue the clarification of these ambiguities; failure to
do so may cause an Offeror to waive its rights.
In Blue and Gold Fleet L.P. v. United States(1) the
National Park Service issued an RFP for ferry services from San Francisco to
Alcatraz Island. In a post-award protest decision, the Court ruled that
the protest was a challenge to the terms of the RFP and was, therefore,
untimely. Blue and Gold Fleet protested that the RFP failed to include
the mandatory wage and benefit data under the Service Contract Act, but the
Court denied their protest, ruling that a party who has the opportunity to
object to the terms of a government solicitation containing a patent error
and fails to do so prior to the close of the bidding process waives its
ability to raise the same objection subsequently in a bid protest action at
the Court of Federal Claims. The protester did nothing to challenge the
omission of the Service Contract Act requirement prior to the date and time
set for receipt of proposals. They waited until after the award of the
contract but by that time they had waived their protest rights.
In Weeks Marine, Inc. v. United States(2)
the protester challenged a Corps of Engineers RFP by filing suit at the Court
of Federal Claims before the time and date set for receipt of
proposals. The Court ruled that Weeks Marine had standing to file a
pre-award protest by showing a non-trivial competitive injury which can be
redressed by judicial relief.
In Esterhill Boat Service Corp. v. United States(3)
the protester challenged a RFP from the Veterans Affairs Department for
leasing building space for a community based out-patient clinic. The VA
sought a lease of 8,000 to 9,000 square feet all on one floor.
Esterhill Boat Service could not comply, but submitted an agency level
protest before the date and time set for receipt of proposals, apparently
without success. After proposals were submitted, the protester filed a protest
at GAO which was rejected. A protest at the Court of Federal Claims
resulted in the same decision.
The Court ruled that Esterhill's challenge was untimely
because, by waiting for the contract award decision, they gambled they would
win, but when they lost, they protested. The Court ruled Esterhill
could have and should have filed suit at the Court prior to proposal
submission, and protested the "one-floor" requirement.
Esterhill's fatal flaw was it allowed its challenge to the
"one-floor" requirement to lapse hoping to somehow win the
contract. When they learned they had lost, it was too late; they had
waived their rights.
In the foregoing cases, the protester failed to continue to
pursue their initial protests. This failure resulted in a waiver of
rights. When they were not successful receiving an award, they failed
in their post award protests. Any challenge to a solicitation must be
timely filed and vigorously pursued. Frivolous protests must be
avoided. In pre-award protests, the protester must demonstrate clear
and prejudicial violation of law or regulation and show a non-trivial
competitive injury which can be redressed by judicial relief.
If a concern fails to pursue their challenge hoping to obtain
a contract, they waive their rights and, if they lose, they don't get a
Contracts Unlimited, Inc.
The foregoing is not a legal
opinion or legal advice. Consult your attorney for legal assistance.
1. 492 F.3d 1308 (Fed. Cir. 2007)
2. 575 F.3d, 1352 (Fed. Cir. 2009)
3. 91 Fed CL. 483 (2010)