The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of one of the most notable bid protest sustain decisions each month.  Below, Crowell Consultant Cherie Owen discusses GAO’s decision in Perimeter Sec. Partners, LLC, which involved a protester’s challenge to its elimination for exceeding the solicitation’s page limits.

After a sustain-free February, protesters saw significantly more success in March, with GAO issuing no fewer than six sustain decisions this month.  We discussed one of these sustain decisions—involving an agency’s improper use of noncompetitive procedures to procure fruits and vegetables for the Defense Commissary Agency—here. 

In Perimeter, the Army Corps of Engineers sought to procure preventative and corrective maintenance services for access control points at 19 Army installations in the northeast region of the United States using the procedures of FAR subpart 8.4.  After the Corps awarded the contract, Perimeter challenged the evaluation of past performance and the agency’s tradeoff decision.  The Corps took voluntary corrective action, stating that it would reevaluate quotations and make a new award decision.  However, upon reevaluation, the Agency concluded for the first time that Perimeter’s quote violated the solicitation’s page limits because its organizational chart and its response times chart exceeded the 15-page limit for offerors’ technical approach narrative volume.

Perimeter protested, noting that the solicitation stated “Resumes, Schedules, Table of Contents, Cover Page/Letter, Cut Sheets, Drawings etc., are not counted in the page count.”  According to Perimeter, its charts fell within the exception for “Drawings, etc.”  In the alternative, Perimeter argued that the solicitation contained a latent ambiguity about whether the charts qualified under the exception for “Drawings, etc.”  In support of this argument, Perimeter noted that the Corps itself had previously (in this procurement and others) interpreted the exception to include charts. 

GAO sustained the protest, agreeing that the page limit exception for “Drawings, etc.” contained an ambiguity with respect to whether charts were included in the exception.  In this regard, GAO found that both the protester’s interpretation (that “Drawings, etc.” included charts) and the Corps’ interpretation (that “Drawings, etc.” did not include charts) were reasonable.  Moreover, GAO found that this ambiguity was latent, noting that were no solicitation terms or provisions that were in irreconcilable conflict.  In sustaining the protest, GAO recommended that the Corps revise the solicitation to clarify the page limits and allow vendors to submit revised quotations.

The Perimeter decision provides a reminder that even the meanings of common words can be interpreted differently in the context of a procurement.  While obvious inconsistencies and ambiguities must be challenged prior to the submission of quotations/proposals, GAO may consider issues regarding latent ambiguities after the award of a contract.

Most protests involve competitive procurements and the many rules governing how agencies are to conduct such procurements. In certain circumstances, agencies are permitted to bypass some of these rules and limit competition. But, as GAO noted in a recently issued sustain decision, the authority to use noncompetitive procedures does not provide the agency carte blanche.