New Millennium contends the agency’s evaluation was improper, and its interpretation of the solicitation was unreasonable. Millennium argues that the RFP did not contain any language indicating that only the listed CPAR categories would be used for scoring purposes, or mention that “other areas” could not be included in the ratings to be scored. Protest at 11. Millennium notes that the RFP expressly directed offerors to use ”the categories that were rated in the CPARS you are claiming when calculating the past performance score for each Project.” Id., citing RFP § M.4.2.1(b), at 101.

The Navy argues that its evaluation was reasonable because the solicitation language was “clear and unambiguous” that the CPAR evaluation categories to be used in scoring offerors’ past performance were only those set forth in the RFP. Id. Alternatively, the Navy argues, even if Millennium’s interpretation of the RFP was also reasonable, any ambiguity in the solicitation was so obvious that the protester was required to raise it prior to the submission of proposals. Id.

Where a dispute exists as to a solicitation’s requirements, we begin by examining the plain language of the solicitation. Harper Constr. Co., Inc., supra; Point Blank Enters., Inc., B-411839, B-411839.2, Nov. 4, 2015, 2015 CPD ¶ 345 at 3. We resolve questions of solicitation interpretation by reading the solicitation as a whole and in a manner that gives effect to all provisions; to be reasonable, and therefore valid, an interpretation must be consistent with such a reading. Desbuild Inc., B-413613.2, Jan. 13, 2017, 2017 CPD ¶ 23 at 5. If the solicitation language is unambiguous, our inquiry ceases. Id. An ambiguity, however, exists where two or more reasonable interpretations of the solicitation are possible. Colt Def., LLC, B-406696, July 24, 2012, 2012 CPD ¶ 302 at 8. If the ambiguity is an obvious, gross, or glaring error in the solicitation (e.g., where solicitation provisions appear inconsistent on their face), then it is a patent ambiguity; a latent ambiguity is more subtle. A-P-T Research, Inc., B-414825, B-414825.2, Sept. 27, 2017, 2017 CPD ¶ 337 at 12; Harper Constr. Co., Inc., supra. Here, as detailed below, we conclude that the disputed terms of the solicitation were latently ambiguous because the provisions appear to be susceptible to two reasonable interpretations.

First, we find the agency’s interpretation of the solicitation is not unreasonable. As set forth above, the RFP instructed offerors to “utilize the categories that were rated in the CPARS you are claiming when calculating the past performance score for each [reference],” and then immediately listed CPAR categories, which did not include “travel/ other direct costs.” RFP § M.4.2.1(b), at 101. Moreover, while all of the RFP’s CPAR scoring examples involved fewer than the six current CPAR categories identified in the RFP, none of these scoring examples exceeded the enumerated CPAR evaluation categories. We find the agency’s interpretation essentially ties together the parts of RFP § M.4.2.1(b)--that the CPAR categories to be used when calculating the average score were the enumerated ones--and is consistent with the solicitation when read as a whole and gives effect to each of its provisions. See Arch Sys., LLC; KEN Consulting, Inc., B-415262, B-415262.2, Dec. 12, 2017, 2017 CPD ¶ 379 at 6.

Millennium advances an alternate interpretation of the solicitation. The protester points to RFP § M.4.2.1(a) which stated that “an average point value will be assigned based on each CPAR criteria . . . .,” without limitation. Protest at 10. Millennium also contends that it understood the purpose of listing the CPAR categories in RFP § M.4.2.1(b) was not to limit the categories to be considered, but rather, to distinguish the current CPAR categories from older ones. Id. at 11.

We also find Millennium’s interpretation of the solicitation to be reasonable. RFP § M.4.2.1(a) stated that the average score “will be assigned based on each CPAR criteri[on]” on which the offeror was rated, and did not include a limitation. Further, RFP § M.4.2.1(b) expressly instructed offerors to “utilize the categories that were rated in the CPARS you are claiming when calculating the past performance score for each Project.” As set forth above, consistent with this language, Millennium utilized all of the categories that were rated in the CPAR report that it was claiming, which included the “other areas” category. While RFP § M.4.2.1(b) also distinguished between the current and former CPAR evaluation categories, in neither instance did the solicitation state that the listed categories were the only acceptable ones. Quite simply, Millennium’s interpretation is based on, and not contradicted by, the express language of the solicitation.

Finally, we conclude that the RFP here did not contain any inconsistency in its language that was obvious, gross, or glaring, such that the ambiguity was patent on the face of the solicitation. We therefore find the ambiguity in the RFP’s scoring scheme was a latent one. The RFP expressly stated that the average score would be “based on each CPAR criteri[on],” and also instructed offerors to “utilize the categories that were rated in the CPARS you are claiming when calculating the past performance score for each Project.” RFP § M.4.2.1(a), (b). While the Navy may have intended the enumerated CPAR evaluation categories to be the only acceptable ones, the express language of the RFP contained no such limitation. Further, the RFP provisions at issue are not facially inconsistent (and thus patently ambiguous). To the contrary, we find nothing in the RFP which contradicts the express language upon which Millennium relies. The Navy essentially argues that offerors should have known what the agency intended based on the listed CPAR categories and scoring examples provided. Quite simply, we do not find these factors sufficiently obvious, gross, or glaring to create a patent ambiguity, especially in light of the express solicitation language to the contrary. In sum, we find that the solicitation contained a latent ambiguity about how the agency would treat offerors whose CPAR reports contained ratings in other than the six enumerated CPAR evaluation categories. See Ashe Facility Servs., Inc., B-292218.3, B-292218.4, Mar. 31, 2004, 2004 CPD ¶ 80 at 10-12.  (Millennium Corporation, Inc. B-416485.2: Oct 1, 2018)

Harper essentially argues that the Navy’s evaluation was unreasonable because “the agency failed to recognize that Harper properly relied upon its own experience in airfield pavement construction, rather than its subcontractor’s experience, and therefore Harper was not required to submit a letter of commitment and an explanation of the meaningful involvement that its subcontractor will have in performance of this contract.” Consolidated Protest at 7. In this regard, Harper argues that the RFP did not limit experience to work that an offeror self-performed on reference projects. Instead, the protester read the RFP to mean that it would receive credit for all work performed under reference projects, even if the particular work was performed by one of Harper’s subcontractors. Id. at 9.

In reviewing a protest challenging an agency’s evaluation, our Office will not reevaluate proposals, nor substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency’s discretion. Analytical Innovative Solutions, LLC, B-408727, Nov. 6, 2013, 2013 CPD ¶ 263 at 2. Rather, we will review the record only to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria and with applicable procurement statutes and regulations. Id.

As discussed above, the agency found Harper’s proposal to be unacceptable because the agency concluded that Harper was relying on the experience of a subcontractor, yet did not submit a letter of commitment, and did not submit an explanation of the meaningful involvement that the subcontractor would have in performance of this contract, which the agency asserts was required by the terms of the solicitation. See AR, Tab 4, TET Findings, at 5; Tab 5, PNM, at 3. Thus, the record presents a dispute as to the requirements of the solicitation.

Where a dispute exists as to a solicitation’s actual requirements, we begin by examining the plain language of the solicitation. Point Blank Enters., Inc., B-411839, B-411839.2, Nov. 4, 2015, 2015 CPD ¶ 345 at 3. We resolve questions of solicitation interpretation by reading the solicitation as a whole and in a manner that gives effect to all provisions; to be reasonable, and therefore valid, an interpretation must be consistent with such a reading. Desbuild Inc., B-413613.2, Jan. 13, 2017, 2017 CPD ¶ 23 at 5. If the solicitation language is unambiguous, our inquiry ceases. Id. An ambiguity, however, exists where two or more reasonable interpretations of the solicitation are possible. Colt Def., LLC, B-406696, July 24, 2012, 2012 CPD ¶ 302 at 8. If the ambiguity is an obvious, gross, or glaring error in the solicitation then it is a patent ambiguity; a latent ambiguity is more subtle. Id. Where there is a latent ambiguity, both parties’ interpretation of the provision may be reasonable, and the appropriate course of action is to clarify the requirement and afford offerors an opportunity to submit proposals based on the clarified requirement. Id. Here, we conclude that the disputed terms of the solicitation were latently ambiguous because the terms appear to be susceptible to two reasonable interpretations.

The RFP instructed that offerors “may utilize experience of a subcontractor that will perform major or critical aspects of the requirement to demonstrate construction experience under this evaluation factor.” RFP at 7. However, if an offeror relied on a subcontractor’s experience, the offeror “must provide a letter of commitment and an explanation of the meaningful involvement that the subcontractor will have in performance of this contract.” Id. The RFP is silent on whether submitted experience was required to be self-performed by the offeror, as the agency argues was the case, or the offeror could claim experience as a prime contractor where the actual relevant work was performed by a subcontractor, as the protester asserts. See generally id.

Harper cites to our Office’s decision in ITT Corporation, Systems Division, B-310102.6 et al., Dec. 4, 2009, 2010 CPD ¶ 12 at 8-9, for the proposition that an agency may properly credit the prime contractor with experience involving functions performed, even if the particular work was actually performed by a subcontractor under the prime contractor’s supervision. Consolidated Protest at 13-14. In ITT Corporation we discussed this general rule as being premised on the fact that a prime contractor under a government contract is responsible for the performance of its subcontractors. ITT Corp., supra, at 9; see also Battelle Memorial Institute, B-278673, Feb. 27, 1998, 98-1 CPD ¶ 107 at 21-22. Absent any language constraining the type of experience acceptable under the RFP, the protester adopted this interpretation in submitting reference projects where it served as the prime contractor, while the actual relevant work was performed by a subcontractor. Consolidated Protest at 9. Harper also asserts that it understood that for offerors who had not performed prime contracts involving airfield paving experience, the “may utilize” solicitation language allowed, but did not require, the offeror to propose the airfield paving experience of a subcontractor. Id.

In reading the solicitation as a whole, our review of the RFP’s language leads us to conclude that Harper’s interpretation of the disputed terms was unobjectionable. In this regard, absent any language limiting the type of experience acceptable to the agency, Harper reasonably interpreted the term “perform” to include reference contracts where it served as the prime contractor, even though the relevant scope of work was actually performed by a subcontractor. Harper also reasonably interprets the solicitation language that the offeror “may utilize the experience of a subcontractor” as permissive, even where that subcontractor “will perform major or critical aspects of the requirement” in meeting the evaluation requirements of factor 1. RFP at Amendment 0003. Thus, under the terms of the RFP, Harper could properly rely on its own relevant airfield paving experience to satisfy the requirements of factor 1, even where it intended to subcontract the work under the resulting contract.

As discussed above, the agency interpreted the terms of the solicitation more narrowly with respect to the performance that was acceptable to meet the requirements of factor 1. In this regard, the award decision states, “Harper submitted three relevant construction projects which they were the prime contractor on, but did not perform the airfield pavement portion of the work.” AR, Tab 5, PNM, at 3. Thus, the agency did not credit Harper’s work as a prime contractor, and instead found that the relevant work was performed by the protester’s subcontractor. In this regard, the agency explains that, “[t]he airfield paving portion of this project is of such importance that the Government needed to evaluate the experience of the actual contractor who would be performing the airfield paving on this contract. Harper did not provide the required 2-3 projects demonstrating its own experience in physically laying airfield paving. . . .” Declaration Task Order Evaluation Board Member dated Oct. 13, 2017.

While the term “perform” is susceptible to be interpreted in the narrower fashion ascribed by the agency, Harper’s more expansive definition is also reasonable given the terms of the RFP. Moreover, we conclude that the RFP did not contain any language that was obvious, gross, or glaring, such that the ambiguity was patent on the face of the solicitation, and that the ambiguity in the disputed RFP language is latent.  (Harper Construction Company, Inc. B-415042, B-415042.2: Nov 7, 2017)

RELI argues that the evaluation of its proposal under the relevant experience factor was unreasonable and inconsistent with the terms of the RFP. Protest at 8-11. Specifically, RELI contends that the agency’s determination not to consider [deleted]’s experience with DME support was based on a misinterpretation of the RFP’s instructions. While FDA construed the instructions to permit only one reference to show a subcontractor’s relevant experience, and to require that two of the references be for the prime contractor, RELI contends that the solicitation permitted two of the three required experience submissions to be for contracts performed by the subcontractor(s), and required one to be for the prime contractor. In response, FDA argues that, to the extent the RFP requirement could be read in the manner RELI suggests, it is based on a patent ambiguity and therefore should be dismissed as untimely. Memorandum of Law at 5-8.

An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. A party’s particular interpretation need not be the most reasonable to support a finding of ambiguity; rather, a party need only show that its reading of the solicitation provisions is reasonable and susceptible of the understanding that it reached. See Ashe Facility Servs., B‑292218.3, B-292218.4, Mar. 31, 2004, 2004 CPD ¶ 80 at 10.

A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle. Id. Assuming an ambiguity exists, then our Office must determine whether the ambiguity is patent or latent in order to determine whether the protest was timely filed. In this regard, a patent ambiguity, which is considered to be apparent from the face of the solicitation, must be protested prior to the closing date for submission of proposals to be considered timely. 4 C.F.R. § 21.2(a)(1).

Here, the lack of guidance in the RFP with respect to the meaning of “prime” and “subcontractor” permitted the solicitation to be interpreted in at least two reasonable ways. In addition to the question set forth above--the number of contracts that were required to show experience by a prime and a subcontractor--there is a question as to whether the terms “prime contractor” and “subcontractor” refer to (1) the position for which the entity in issue was being proposed in the submitted proposal, or (2) the position in which it performed under the contract identified to show relevant experience or past performance. Below, we discuss how this ambiguity informs the parties’ interpretation of the RFP.

The requirement for relevant experience information described in RFP section 5.4.3 (Factor 3: Relevant Experience) reasonably may be understood to require an offeror to submit at least two examples of relevant contracts performed as a prime contractor (“at least 2 out of the 3 projects the offeror must be the prime”). RFP at 41. The requirement for past performance references, in RFP section 5.8 (Past Performance Questionnaire), allowed a maximum of 2 of 3 past performance references to be for the subcontractor, with only one being required for the prime contractor. As stated above, the solicitation required the past performance questionnaires to be from the sources the offeror identified to show relevant experience. Reading the above two RFP sections together, RELI interpreted the language to mean that two of three examples of relevant experience submitted could be ones that were performed (in the role of prime) by an entity now being proposed as a subcontractor on the main offeror’s team. AR, Tab 5, August 4, 2015, E-mail from RELI to the agency. We think that RELI’s interpretation is reasonable. The agency’s interpretation, which arguably is also reasonable, was that the word “prime” in the parenthetical quoted above referred to the main offeror, and not to the role of the entity in performing the prior contract.

While FDA recognizes that the RFP, as amended, included unclear instructions in this regard, the agency argues that the unclear instructions presented a patent ambiguity, and that the protest is therefore untimely. We disagree, as explained below.

Assuming that both the agency’s and the protester’s interpretations of the experience factor instructions are reasonable, we find the RFP ambiguous with respect to the evaluation of the relevant experience factor and past performance risk assessment. As noted above, despite being advised of RELI’s interpretation of these two clauses through a question RELI submitted, FDA only realized that the RFP’s instructions were unclear during the course of evaluations that took place more than a month after proposals had been submitted. When the technical evaluation team raised this issue, the contract specialist expressly acknowledged in a memo to the evaluation team that the RFP instruction was ambiguous. See AR, Tab 6, Interpretation of Unclear Instructions in RFP. Since the ambiguity only came to light in the context of the agency’s evaluation of relevant experience, we conclude that the ambiguity was not obvious or glaring--in short, it was latent rather than patent and RELI’s protest of this issue thus is timely.

Where there is a latent ambiguity, the appropriate course of action for an agency is to clarify the requirement and afford offerors an opportunity to submit proposals based on the clarified requirement. Colt Def., LLC, B-406696. July 24, 2012, 2012 CPD ¶ 302 at 8. When dealing with latent ambiguities, we will sustain a protest where a latent ambiguity prevented the offerors from competing intelligently on a relatively equal basis. Coastal Int’l Security, Inc., B-411756, B-411756.2, Oct. 19, 2015, 2015 CPD ¶ 340 at 8.

Here, as noted above, when the agency discovered that an ambiguity existed, it affirmatively decided not to amend the RFP, but instead chose to continue as if no ambiguity existed, applying one possible interpretation of the RFP’s terms. CO Statement at 3. In so doing, the agency refused to consider information RELI had submitted concerning experience performing DME support work--a critical aspect of this requirement. The agency evaluated RELI’s proposal as lacking this experience, and rated the proposal as marginal under the relevant experience factor.

Although RELI’s price was slightly higher than that of DSFederal (approximately one-half of one percent), RELI did receive a higher technical rating under factor 1--the most important technical factor. As a result of the ambiguity here, and the agency’s failure to clarify the requirement, offerors were effectively precluded from competing intelligently and on a relatively equal basis. Under these circumstances, we find RELI was competitively prejudiced by the agency’s actions. Colt Def., LLC, supra; Coastal Int’l Security, Inc., supra. Accordingly, we sustain the protest.  (RELI Group, Inc. B-412380: Jan 28, 2016)  (pdf)

Miracle Systems protests the rejection of its proposal, arguing that the agency’s interpretation of the RFP’s pricing provisions is unreasonable and reflects, at best, a latent ambiguity in the solicitation. Protest at 8. In the protester’s view, the RFP’s escalation provision can reasonably be read to permit escalation at the beginning of the option period, based, among other things, on the provisions’ use of the plural “contract year periods” and “ordering periods.” Id. at 5 (emphasis added). According to Miracle Systems, the RFP’s answers to offerors’ questions regarding price escalation failed to clarify whether the RFP provided for one 10-year performance period or two 5-year performance periods. Id. at 6.

Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. See Raytheon Co., B-404998, July 25, 2011, 2011 CPD ¶ 232 at 17; Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2. An ambiguity exists if a specification is susceptible to more than one reasonable interpretation that is consistent with the solicitation, when read as a whole. Poly-Pacific Techs., Inc., B-293925.3, May 16, 2005, 2005 CPD ¶ 100 at 3.

Reading the solicitation language as a whole, including the RFP’s questions and answers, we agree with the SEC here that the solicitation unambiguously restricts the proposal of escalating labor rates, regardless of performance period. Notwithstanding the protester’s interpretation, the RFP’s non-escalation provision plainly states that labor rates are fixed for all contract year periods, and are not subject to any escalation through the course of the ordering periods. RFP attach. 7 at 1 (emphasis added). In our view, any alleged ambiguity that may exist in that regard was resolved by the SEC’s responses to offerors’ questions, particularly, that the agency required “ceiling” rates for each labor category “to cover the entire 10-year performance period,” and that the agency would not consider escalating labor rates.

The protest is denied.  (Miracle Systems, LLC, B-408947, Dec 24, 2013)  (pdf)

Alleged Latent Ambiguity

IAP asserts that the RFP, as amended, contained a latent ambiguity regarding how offerors should prepare their price proposals. In particular, the RFP instructed offerors as follows:

B.11 UNIT PRICE ADJUSTMENTS IN OPTION PERIODS

This contract incorporates Davis Bacon Wage Determinations, Service Contract Acts (SCAs), and Collective Bargaining Agreements (CBAs) from the previous service provider. In accordance with subparagraph (b) of the Fair Labor Standards and Service Contract Act—Price Adjustment Clause, FAR 52.222-43 and subparagraph (b) of the Davis-Bacon Act—Price Adjustment Clause, FAR 52.222-32 offerors shall not include escalation of wage and fringe benefit rates for Service Contract Act covered employees and/or Davis-Bacon Act covered employees in the option periods of performance. Wage and fringe benefit rates used for the base performance period will be used in pricing labor costs for all periods of performance in the option years. In accordance with the referenced clauses, the contractor may be entitled to an adjustment in contract price only when a new SCA or DBA wage determination is modified into the contract and it affects wages and fringe benefits of covered employees.

RFP at 19. Amendment No. 14 to the solicitation, which was issued prior to the submission of FPRs incorporated a new collective bargaining agreement (CBA), effective from July 2011 through June 2014, between IAP (the current incumbent contractor) and the cognizant labor union. This new CBA included escalated wage rates through 2014.

In preparing its FPR, IAP used the escalated wage rates to calculate its price for the option years. The record shows, however, that all of the remaining firms, consistent with the terms of the original RFP, did not use escalated rates for the option years. IAP maintains that the terms of amendment No. 14 introduced a latent ambiguity into the solicitation that led it to price its proposal in a manner that differed from the other offerors.

Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2; Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD ¶ 140 at 2.

We find the protester’s reading of the solicitation unreasonable. As quoted above, the RFP instructions to offerors were unequivocal, expressly instructing the offerors not to escalate their proposed wage rates for SCA wage rate employees for the option years of the contract (all of the employees covered by the CBA issued with amendment No. 14 are SCA wage rate covered employees). Furthermore, the RFP also incorporated the terms of Federal Acquisition Regulation (FAR) § 52.222-43 which specifically requires the contractor to warrant that it has not included any amount in its price to cover contingencies for which increased costs would be allowable pursuant to an equitable adjustment under that provision: “b) The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause.” FAR §52.222-43(b).

Amendment No. 14 did nothing to alter or modify the express instructions to the offerors (or the applicable FAR provision); it simply provided an updated CBA, without further elaboration. It follows that the instructions in the RFP remained in full force and continued to direct offerors to use only base year rates in calculating their prices.

To the extent that it appeared to IAP that the terms of amendment 14 somehow altered or modified the earlier proposal preparation instructions, this would have been a patent ambiguity inasmuch as the two provisions would directly be in conflict. The earlier instructions directed offerors not to escalate prices to account for increases in wages during the option years, but, according to IAP, the CBA required offerors to increase prices to account for escalation of wages in the option years. Since the RFP presented what appeared to IAP to be a direct conflict between its provisions, this amounted to a patent ambiguity rather than a latent ambiguity. LS3, Inc., B-401948.11, July 21, 2010, 2010 CPD ¶ 168 at 3. As such, any objection to the terms of the RFP, to be timely, had to be filed prior to the closing date for FPRs. Id.  (IAP-Hill, LLC, B-406289, B-406289.2, B-406289.3, Apr 4, 2012)  (pdf)

Singleton argues that the agency “did not properly evaluate Singleton’s past performance by failing to take into account past performance information regarding Singleton’s subcontractor who would perform major or critical aspects of the solicitation’s requirements.” Protest at 4. In this regard, the protester points out that Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii) states that a past performance “evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.” The protester also points out that the RFP did not state that the agency would not consider the past performance of proposed subcontractors in evaluating past performance, and that our Office has previously found that the past performance of a proposed subcontractor may be considered in determining whether an offeror meets experience or past performance requirements in a solicitation where the solicitation does not expressly prohibit its consideration. Protester’s Comments at 1, 3; see The Paintworks, Inc., B‑292982; B‑292982.2, Dec. 23, 2003, 2003 CPD para. 234 at 3.  The agency responds by pointing out that it “never stated in the RFP that the past performance of other than the offeror would be considered,” and that the RFP did not specifically “request that the offerors submit past performance information for proposed major subcontractors.” Contracting Officer’s Statement at 7; see AR at 4. The agency notes that our Office has recognized that FAR sect. 15.305(a)(2)(iii), cited by the protester, does not mandate that agencies consider the past performance of subcontractors, but only states that agencies “should” consider such information. AR at 6, citing MW-All Star Joint Venture, B-291170.4, Aug. 4, 2003, 2004 CPD para. 98 at 4 and TyeCom, Inc., B‑287321.3, B-287321.4, Apr. 29, 2002, 2002 CPD para. 101 at 6. The agency thus concludes that “the only reasonable construction of the [RFP’s] past performance evaluation clause is that only prime contractor past performance information would be considered by GSA in evaluating offers,” and that Singleton’s protest is an untimely challenge of an alleged impropriety apparent from the solicitation. AR at 5; see Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006). We agree with the protester that FAR sect. 15.305(a)(2)(iii) suggests, as evidenced by the word “should,” that agencies consider in their evaluations the past performance of proposed “subcontractors that will perform major or critical aspects of the requirement.” In addition, as correctly noted by the protester, our Office has found an agency’s consideration of a proposed subcontractor’s past performance when evaluating an offeror’s proposal under a past performance factor permissible in the same circumstances as here, that is, where the solicitation neither prohibited nor mentioned the evaluation of such information. AC Techs., Inc., B‑293013, B‑293013.2, Jan. 14, 2004, 2004 CPD para. 26 at 3; The Paintworks, Inc., supra. To put it another way, our Office, based upon applicable caselaw, statute, and regulation, would have found it unobjectionable had the agency chosen to consider the past performance of Singleton’s subcontractor when evaluating Singleton’s proposal.

The fact remains, however, that the solicitation referred to the agency’s evaluation of the “offeror’s” past performance and did not specifically request information on the past performance of subcontractors. Additionally, the agency is correct in pointing out that the consideration of subcontractor past performance, as set forth in FAR sect. 15.305(a)(2)(iii), is not mandatory. MW-All Star Joint Venture, supra; TyeCom, Inc., supra; see Olympus Bldg. Servs., Inc., B-282887, Aug. 31, 1999, 99-2 CPD para. 49 at 3-4 (RFP’s past performance evaluation factor providing that key personnel past performance would not be considered was found to be reasonably based and not prohibited by regulation).  Although in the agency’s view the solicitation provided that the agency would consider only the corporate past performance information of the “offeror,” and the agency report makes it clear that the agency intended such a reading, we also, for the reasons stated above, find the protester’s interpretation of the solicitation that it would also permit the evaluation of subcontractor past performance to be reasonable. Because we believe that both the agency’s and protester’s interpretations of the RFP are reasonable, this indicates an ambiguity in the RFP with respect to information that the agency would consider in performing its past performance evaluation. An ambiguity exists where two or more reasonable interpretations of the terms or specifications are possible. A party’s particular interpretation need not be the most reasonable to support a finding of ambiguity; rather, a party need only show that its reading of the solicitation provisions is reasonable and susceptible of the understanding it reached. DynCorp Int’l LLC, B‑289863; B-289863.2, May 13, 2002, 2002 CPD para. 83 at 8; Aerospace Design & Fabrication, Inc., B-278896.2 et al., May 4, 1998, 98-1 CPD para. 139 at 13.  (Singleton Enterprises, B-298576, October 30, 2006) (pdf)

Here, we find that Deco's interpretation of the RFP was not reasonable. The Taft and Hamilton buildings that Deco believed were to be served by the "desk" have different addresses and, more tellingly, have different postal zip codes. Although, as Deco suggests, it is possible that two buildings might share a common access point, such a possibility is unlikely where the buildings are on different streets, and less likely still where the buildings have different zip codes. Moreover, both of the buildings were on public streets within the city of Cincinnati, Ohio, and it would have been a simple matter for Deco to ascertain whether the two buildings were proximately located to confirm whether its interpretation was correct. Indeed, an on-site inspection, consultation of a map, or a simple inquiry through a public website would have informed Deco that the two buildings are more than 6 miles apart. Because Deco's interpretation of the SOW as requiring only a single security desk for two buildings located six miles apart was not reasonable, that interpretation provides no support for its contention that the solicitation contained a latent ambiguity. See Input Solutions, Inc. , B-294123, Aug. 31, 2004, 2004 CPD 185 at 3. Even if we were to find that Deco's interpretation was reasonable, it would at best indicate a patent ambiguity, i.e. , one that is obvious from the face of the solicitation. In this regard, there is an apparent conflict in the RFP between the singular term "desk" and the requirement that the desk serve two buildings that are at different addresses in different zip codes. Where a solicitation contains a patent ambiguity, an offeror is obligated to seek clarification prior to the time for submission of proposals. Dix Corp. , B-293964, July 13, 2004, 2004 CPD 143 at 3. Where, as here, a patent ambiguity is not challenged prior to submission of proposals, we will dismiss as untimely any subsequent protest assertion that is based on an alternative interpretation. Bid Protest Regulations, 4 C.F.R. 21.2(a)(1) (2004); U.S. Facilities, Inc. , B-293029, B-293029.2, Jan. 16, 2004, 2004 CPD 17 at 10. Any protest based on an alleged ambiguity arising from the term "desk" therefore should have been filed prior to the time for receipt of proposals. (Deco Security Services, B-294516, November 1, 2004) (pdf)

With respect to ISIs argument that the COs e-mail message provided explicit direction to incorporate the terms of ISIs earlier contract here, our reading of the email communication, as a whole, is that it indicates only that the CO thinks ISI should be familiar with the nature of the work and, as the incumbent, should have sufficient information to understand the type of work and submit a competitive quotation. While, as quoted above, the COs message stated that the image deliverables should be based on how you previously provided clear, readable images for the Library, there is nothing in this general language that imports requirements from ISIs predecessor contract into this solicitation. Since ISIs interpretation of the COs e-mail is unreasonable, it provides no support for ISIs contention that the message created a latent ambiguity about the work required under the RFQ. See Ruska Instrument Corp. , B-235247, Aug 7, 1989, 89-2 CPD 111 at 3. (Input Solutions, Inc., B-294123, August 31, 2004) (pdf)

Assuming then that both the agency’s and the protester’s interpretations of the provision are reasonable, this indicates an ambiguity in the RFP with respect to the price evaluation of the indefinite-quantity items. Accordingly, we must determine whether the ambiguity is latent or patent since, if patent, it would have had to be protested prior to proposal submission date. The Arora Group, Inc., B-288127, Sept. 14, 2001, 2001 CPD ¶ 154 at 7 n.5. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, (e.g., where the solicitation provisions appear inconsistent on their face), while a latent ambiguity is more subtle. See Brickwood Contractors, Inc., B-292171, June 3, 2003, 2003 CPD ¶ 120 at 6 (explaining a patent ambiguity as one which is obvious on its face); Bank of Am, B-287608, B-287608.2, July 26, 2001, 2001 CPD ¶ 137 at 10 (finding patent ambiguity where solicitation terms were in direct conflict). Since Ashe’s interpretation of the solicitation provision did not directly conflict with any of the other solicitation provisions and the ambiguity only came to light in the context of the agency’s price evaluation, we conclude that the ambiguity was latent rather than patent and Ashe’s protest of this issue thus is timely.  (Ashe Facility Services, Inc., B-292218.3; B-292218.4, March 31, 2004) (pdf)

Ashland essentially alleges that, either the purchase description did not require that the bartacks be sewn through all plies after the material was turned, or the requirement is latently ambiguous with Ashland's interpretation representing one of two reasonable interpretations. We disagree. The requirement unambiguously stated that the bartacks had to go through all plies without qualification. Since Ashland's PDM is constructed with two plies of outer shell fabric at the location of the bartacks and the bartacks go through only one of them, Ashland's PDM does not comply with the requirement.  In any event, the defect in Ashland's PDM is minor. It did not raise any material concern with the agency because it is easily corrected during production.  In fact, all of the PDM defects for all offerors considered for award were similarly minor in nature. The SSA recognized this and considered these PDMs to be very close; although Ashland maintained a slight evaluated advantage, it was not significant and did not translate into value to the government for purposes of awarding at a higher price. Tr. at 11-13, 16 (SSA); Agency Report, Tab 15, Source Selection Decision, at 5. We find reasonable the SSA's assessment of the evaluated PDM differences between these proposals.  (Ashland Sales and Service Company, B-291206, December 5, 2002, (sustained on another issue) (pdf) 

We have reviewed the entire solicitation, including the website containing the Guide Plates, and conclude that the RFP contained a latent ambiguity that materially affected how offerors prepared their proposals, and resulted in an unequal competition. An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. Moreover, a party's particular interpretation need not be the most reasonable to support a finding of ambiguity; rather, a party need only show that its reading of the solicitation provisions is reasonable and susceptible of the understanding that it reached.  There are two levels of ambiguity at issue here: first, whether the Guide Plates are mandatory or merely discretionary; and second, what the Guide Plates require, if they are mandatory.  (The Arora Group, Inc., B-288127, September 14, 2001) (pdf)