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FAR
14.208 (c): Same
information provided to all bidders |
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Comptroller
General - Key Excerpts |
CCC asserts that the agency
improperly rejected its bid without reviewing its SDVOSB status
under the fast track verification process set forth in the
deviation clause included in the solicitation. In addition,CCC
contends that it was misled into participating in this
procurement by the solicitation clause, which indicates, in
CCC’s view, that any apparent successful offeror--even those not
currently listed in the VIP database--would be eligible for fast
track verification of its status.
The VA disagrees, arguing that it issued additional guidance
about its solicitation clause to address this issue.
Specifically,the VA argues that the deviation clause was not
intended to apply to firms not already listed in the VIP
database. Thus, according to the agency, CCC is ineligible for
fast track verification. We conclude that the agency’s position
is inconsistent with the terms of the solicitation.
Although procuring agencies have broad discretion regarding
selection of the evaluation criteria to be applied, they are
required to disclose all evaluation factors and significant
subfactors in order for offerors to meaningfully compete on an
equal basis. An agency may not induce offerors to prepare and
submit proposals based on one premise, then make source
selection decisions based on another. See Hattal &
Assocs.,B-243357, B-243357.2, July 25, 1991, 91-2 CPD ¶ 90 at 7.
Here, the solicitation’s deviation clause provided an
opportunity for “the apparent successful offeror, unless
currently listed as verified in the [VIP],” to have its SDVOSB
status reviewed under the fast track process. While the agency
asserts that this language was only intended to apply to firms
already listed in the VIP, but not yet verified, the
solicitation clause does not, on its face, indicate that
qualification. Indeed, as discussed above, based on the language
of the clause, even the contract specialist was prepared to
include CCC in the fast track process.
We agree with CCC’s contention that the language “unless
currently listed as verified” could mean either: (1) firms that
are listed, but not verified; or (2) firms that are not listed
at all. Thus, under the solicitation clause, either of these
types of firms is entitled to a fast track verification review.
Since CCC is not yet listed as verified, and since CCC is the
low bidder here (i.e., is “the apparently successful offeror,”
in the terms of the clause), CCC is entitled to the expedited
verification review. Accordingly, we find the agency’s refusal
to consider CCC’s bid under the fast track process to be
inconsistent with the IFB’s evaluation criteria, and we sustain
the protest on this basis.
As a final matter, we disagree with the VA’s contention that
this outcome is inconsistent with our decision in FedCon RKR JV
LLC,B-405257, Oct. 4, 2011, 2011 CPD ¶ 205. While we acknowledge
that the situation here and the situation addressed in FedCon
are similar, we think the posture of these two protesters is
slightly different. FedCon argued in its filing that it was
advised by VA representatives that it was listed in the VIP
database, and that the contracting officer was ignoring its
listing and improperly refusing to provide the company an
expedited review. FedCon,supra at 3, and 4 n.7. As a result, our
decision addressed the factual dispute, concluded that FedCon
was not listed in the VIP database, and applied the clause as
the VA argued it was intended to be applied, an interpretation
to which FedCon did not object.
In contrast, CCC acknowledges that it is not yet listed,that its
application is complete but pending, and that it reads the
solicitation clause to provide for an expedited verification
review, so long as it is “the apparently successful offeror.” We
think CCC has proffered a reasonable reading of the clause, and
that the VA has not shown how the bidders here could have known
of the agency’s different reading. In this regard, we are
concluding that the clause contained a latent ambiguity about
how the agency would treat bidders who were not currently listed
as verified. SeeAshe Facility Servs., Inc., B-292218.3,
B-292218.4, Mar. 31, 2004, 2004CPD ¶ 80 at 10-12. We are also
concluding that CCC’s view is as reasonable as the agency’s
interpretation, and is not contradicted by other provisions of
the solicitation.
For the record, we note that the problem arising from this
ambiguity in the solicitation’s deviation clause will be
short-lived. As mentioned above, after December 31, 2011, all
VOSB and SDVOSB concerns must be“listed as verified” in the VIP
database to receive awards under the Veterans First program.
VAAR § 804.1102. As also mentioned above, all remain ingself-certified
companies listed in the VIP database were either verified or
denied SDVOSB status as of September 15, 2011. Supp. Agency
Report at 3 n.3. In addition, the VA advises that it stopped
using the solicitation deviation clause at issue in this case as
of September 15. Id. (Commandeer
Construction Company LLC, B-405771, December 29, 2011)
(pdf)
It is a fundamental principle of
procurement law that bidders must be treated equally by a
procuring activity. An essential element of that treatment
involves providing bidders with the same information concerning
the agency's requirements so as to provide a common basis for
the submission of bids. (American
Analytical & Technical Services, Inc., B-282277.3,
August 16, 1999) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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Commandeer Construction Company LLC,
B-405771, December 29, 2011 (pdf) |
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American
Analytical & Technical Services, Inc., B-282277.3,
August 16, 1999 |
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