Government Contracts RFP Contained Latent Ambiguity
Thursday, October 25, 2018

RFP Contained Latent Ambiguity

By Government Contracts Editorial Staff

A protest of contract awards for program management technical support services was sustained because the request for proposals contained a latent ambiguity regarding the evaluation under the past performance factor. The RFP included a detailed formula for converting the adjectival ratings received on a contractor performance assessment report into an average score, and then into points on a self-scoring worksheet. Offerors were instructed to “utilize the categories that were rated in the CPARS … when calculating the past performance score for each [p]roject.” The protester’s first reference used five of the six evaluation categories identified in the RFP, but the protester’s CPAR included another evaluation category that was not listed in the RFP. The evaluators removed this sixth category from the protester’s worksheet because the category was not included in the RFP and made a corresponding reduction to the protester’s past performance self-score. According to the protester, the RFP did not indicate 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. The government responded that the RFP was “clear and unambiguous” that only the CPAR evaluation categories set forth in the RFP would be used for scoring.

Two Reasonable Interpretations. The Comptroller General concluded the provision was susceptible to two reasonable interpretations. The government’s interpretation “essentially tie[d] together the parts of [the disputed provision]—that the CPAR categories to be used when calculating the average score were the enumerated ones—and [was] consistent with the [RFP] when read as a whole and [gave] effect to each of its provisions.” The protester’s interpretation, on the other hand, was based on, and not contradicted by, the express language of the RFP. The disputed provision stated the average score would “be assigned based on each CPAR criteri[on]” on which the offeror was rated and did not include a limitation, and it expressly instructed offerors to “utilize the categories that were rated in the CPARS you are claiming when calculating the past performance score for each [p]roject.” Consistent with this language, the protester used all of the categories that were rated in the CPAR report that it was claiming. Finally, the RFP did not contain any inconsistency that was obvious, gross, or glaring, such that the ambiguity was patent. The Comptroller General recommended the government reevaluate the protester’s proposal using the protester’s interpretation. (Millennium Corp., 33 CGEN ¶116,120)

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