Government Contracts Legal Forum
COFC AND GAO DISAGREE, COURT SUSTAINS $32M PROTEST
In another example of the Court of Federal Claims ("Court") and the Government Accountability Office (GAO) reaching different conclusions, the Court sustained a $32 million protest in a recent decision brought against the Department of Veterans Affairs ("VA"), whereas GAO had dismissed the protest as untimely on the grounds that LabCorp should have protested what GAO saw as a patent ambiguity in the solicitation before the deadline for receipt of proposals. The Court disagreed, however, and concluded that the solicitation did not contain a patent ambiguity and that LabCorp did not waive its claim by failing to bring a protest before the proposal period closed.
LabCorp alleged that while the General Services Administration's e-Buy website (where bidders were required to submit their proposals) listed the submission deadline as 2 p.m. Eastern time, the formal solicitation stated that the deadline to submit proposals was 2 p.m. Central time. Although LabCorp contacted the VA when it noticed the discrepancy, and the VA confirmed that proposals were due at 2 p.m. Central time, when LabCorp attempted to submit its bid at 1:03 p.m. Central Time, GSA's e-Buy website would not accept the bid and sent LabCorp an electronic notice that the RFQ had closed at 2 p.m. Eastern.
While GAO concluded that the discrepancy between the deadline for proposals in the solicitation and on the e-Buy website was a patent ambiguity that LabCorp should have protested before the close of procurement, Judge Allegra concluded that there was no patent ambiguity because the solicitation unambiguously stated the deadline for proposals, and the Court refused to use extrinsic evidence such as the e-Buy website to import ambiguity in an otherwise unambiguous solicitation. Because the discrepancy was not a patent ambiguity, the Court, unlike GAO, concluded that LabCorp had not waived its claim. The Court noted that LabCorp brought the discrepancy to the VA's attention when it discovered the problem, and that LabCorp did not know the website would prevent it from submitting its bid until it tried to submit it and it was too late to object further.
The Court also imposed discovery sanctions on the government for failing to preserve a copy of the e-Buy website, because without those records, the Court could not evaluate what LabCorp saw prior to the close of the procurement. For a discussion on those sanctions, see my post here.