The opinion
REDACTED OPINION
In the United States Court of Federal Claims
No. 15-158C
Filed: April 2, 2015
Redacted Version Issued for Publication: May 7, 20151
* * * * * * * * * * * * * * * * **
VISUAL CONNECTIONS, LLC,
*
Protestor,
*
v. *
*
UNITED STATES, * Post-Award Bid Protest;
* Jurisdiction; Failure to State a Claim;
Defendant, Waiver; Ambiguity.
*
v. *
*
*
KNIGHT POINT SYSTEMS, LLC, *
Defendant-Intervenor.
* * * * * * * * * * * * * * * * **
Cyrus E. Phillips, IV, Albo & Oblon, L.L.P., Arlington, Virginia, for protestor.
Shari A. Rose, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her were Benjamin
C. Mizer, Acting Assistant Attorney General, Civil Division, and Robert E. Kirschman,
Jr., Director, Commercial Litigation Branch.
Thomas O. Mason, Cooley, LLP, Washington, D.C., for intervenor.
1 This opinion was issued under seal on April 2, 2014. The parties were asked to propose
redactions prior to public release of the opinion. This opinion is issued with some of the
redactions that the parties proposed in response to the court’s request. Words which are
redacted are reflected with the following notation: “[redacted].”
OPINION
HORN, J.
FINDINGS OF FACT
Protestor, Visual Connections, LLC (Visual Connections), filed a post-award bid
protest in the above captioned case on February 19, 2015, protesting the United States
Department of Health and Human Services (HHS), Agency for Healthcare Research and
Quality’s (AHRQ) award of a task order to Knight Point Systems LLC (Knight Point).2
On June 26, 2014, AHRQ issued Request for Quote No. AHRQ-15-10003 (RFQ).
The RFQ sought quotations from “service-disabled veteran-owned small businesses
holding Federal Supply Schedule (FSS) 70 contracts with the General Services
Administration (GSA).” The RFQ indicated that, “[t]he purpose of this task order is to
maintain agency production systems as well as the architectural, engineering,
configuration management, and hosting services needed to support those systems. The
contractor shall provide support for application operations and maintenance, and testing
and deployment of complex technologies into the existing IT environment.” The period of
performance was for a “Base Period of 12 months with four, 12 month option periods.”
The “Quote Review Criteria and Evaluation” indicated that
[e]valuation of responses to the RFQ will consider both technical and cost
factors. Both the technical response and business response will be
evaluated based on the extent to which they follow the technical and
business response instructions in section 7 [Quote Requirements] of this
RFQ. The quote(s) representing the best value will be selected.
Regarding the technical response, the RFQ indicated that “[o]fferors will be
evaluated on how well they address vendor capacity, expertise, and understanding of
conformance issues with the stated accessibility requirements.” For the evaluation of the
technical response, the RFQ identified 100 points, with 40 points for “UNDERSTANDING
THE PROJECT AND TECHNICAL APPROACH,” 20 points for “CORPORATE AND
PERSONNEL QUALIFICATIONS AND EXPERIENCE,” and 40 points for
“MANAGEMENT AND STAFFING PLAN.” (all capitalization in original). Regarding price,
the RFQ indicated that “[b]usiness responses will be evaluated for price reasonableness.
An analysis will be conducted to determine whether the proposed effort is realistic for the
2 On February 23, 2015, the court granted Knight Point’s motion to intervene. Despite
moving to intervene, Knight Point filed two notices with the court, first indicating that it did
“not intend to file its own motion to dismiss,” and in the second notice indicating that it did
“not intend to file its own submission regarding the decision issued by United States Court
of Appeals for the Federal Circuit in Bannum v. United States, No. 2014-5085 (March 12,
2015).” In the second notice, Knight Point indicated that “Knight Point did not file a motion
to dismiss separate from the Defendant's motion, and accordingly will defer to the
Government to address the impact of the Bannum decision on its waiver arguments.”
2
work to be performed; reflect a clear understanding of the requirements; and consistent
with the unique methods of performance described in the offeror's technical response.
This analysis is intended to determine the degree to which the quote is fair and
reasonable.” The parties agree that the RFQ did not address the relative importance of
the price and non-price factors.
In its complaint, Visual Connections indicates that the “Request for Quotations
Number AHRQ-15-10003 was issued on June 26th, 2014, and Quotations were received
on July 28th, 2014. The announced Evaluation Factors were not challenged before the
date and time set for receipt of Quotations.” Five offerors, including protestor and
intervenor, submitted proposals. The Source Selection Determination indicated that “[t]he
technical evaluation was conducted on August 5, 2014 by an internal review panel
consisting of persons with background and experience in the field covered by this
procurement. The quotes were reviewed and scored based upon the criteria listed in the
RFQ.” Protestor received an evaluated score of 81.25, and an evaluated price of
$13,947,748.00 for the base year and the four option years. Intervenor received the
highest evaluated score, 90.25, and had an evaluated price of $19,958,456.00 for the
base year and the four option years.3
The Source Selection Determination also indicated that:
The solicitation stated that the award would be made to the offeror that
presents the best value to the Government based on two factors: 1)
Technical and 2) Price. Although the price quoted by Knight Point Systems
is higher than all other offerors, except [redacted], their technical response
was significantly superior to all other offerors. KPS' [Knight Point Systems]
proposed cost outlined in their business response was reasonably under
AHRQ's independent government cost estimate, which the government
deemed fair and reasonable based off of current and historical data.
Furthermore, their proposed labor mix and commitment to retain senior staff
demonstrated their complete understanding of the project and the skill sets
required to ensure IT service delivery for the four defined task areas.
Personnel were the largest evaluation factor and KPS presented by far the
highest caliber of personnel with all required skill sets and certifications.
Additionally, the hours proposed and cost were in direct line with the
government's estimate for the scope of work. Conversely, the four other
Offeror's cost and technical responses demonstrated they did not possess
an accurate or complete understanding of the project. In some instances
either the cost or overall hours bid were not consistent or in line with
government estimates, which were determined using significant historical
data from previous contracts, for the scope of work defined in the SOW
[Statement of Work]. The Knight Point Systems response is technically
superior to all other offerors. Although their quote was offered at a higher
total estimated price, the technical benefits of their response outweigh the
3The Independent Government Cost Estimate for the base year and the four option years
was $[redacted].
3
technical deficiencies and risks presented by the other offerors despite their
lower costs. It is determined that the response submitted by Knight Point
Systems represents the best value to the Government. Based on the above,
the Contracting Officer selects Knight Point Systems for award of this task
order in the total amount of $27,458,456. The base period amount funded
at time of award is $3,991,691.20.
The Task Order Officer’s Award Recommendation Memo, included as an attachment to
the Source Selection Determination, indicated that, regarding Visual Connections:
The Visual Connections (VC) Team proposed a team of incumbent
contractors and staff that have knowledge of the applications, policies,
procedures (SDLC, Rational, etc.) and toolset used to support the O&M
requirements and activities. However, the VC Team failed to demonstrate a
clear understanding of the strategic direction of AHRQ and needs for
addressing current challenges faced in the current and future operational
environment as related to Shared Services transition, Virtual Infrastructure
and electronic processing. The VC Team's response to specific tasks were
stated in terms of prior support accomplishments rather than providing an
approach to performing or improving task performance as requested in the
SOW. In terms of Application Development they discussed an approach to
independently foster application development which is not the intention of
this task. It is not a requirement to have the contractor seek application
development opportunities. In terms of key personnel, VC exposes AHRQ
to significant continuity risk by proposing a Lead Architect that is a Database
Analyst without the appropriate level of experience or management ability
to fulfill this role. They also failed to provide the skills mix required to support
effective performance of the SOW Tasks.
Regarding Visual Connections, in its trade off analysis, the agency indicated:
After careful review, VC Team's cost proposal highlighted some challenges
that would affect their ability to successfully perform the tasks outlined in
the SOW. For instance, the Visual Connections Team proposed a staffing
level of [redacted] FTE's [Full Time Equivalent] ([redacted] hrs.) at a cost of
$[redacted] which is well below the [redacted] FTE's ([redacted] hrs.)
historical billings and the government cost estimate of $[redacted]. The low
staffing levels proposed by the VC Team present significant risk to AHRQ
and directly affect the VC Team's ability to adequately perform the work
outlined in the SOW and are considered unrealistic to support existing
AHRQ applications. Additionally, the VC Team did not sufficiently address
critical requirements outlined in the SOW related to managing and
maintaining a storefront capability for Agency publications, administering
AHRQ's SharePoint Server environment, and enhancing mobile
applications. This is in stark contrast to how KPS accurately provided staff
4
and a labor mix required to sustain O&M operations on a consistent and
uninterrupted basis.
AHRQ awarded Task Order No. HHSA290201500001G to Knight Point on
November 5, 2014. Subsequently, Visual Connections filed a protest with the United
States Government Accountability Office (GAO). On February 13, 2015, the GAO denied
the protest.4 Thereafter, on February 19, 2015, Visual Connections filed its protest in the
United States Court of Federal Claims. Before this court, protestor claims:
This Civil Action is brought to obtain a Declaration that the United States
Department of Health & Human Services, Agency for Healthcare Research
and Quality's (AHRQ's) decision to award to Knight Point the labor-hour
GSA Task Order Contract proposed by Request for Quotations Number
AHRQ-15-10003 lacks a rational basis and is neither reasonable nor lawful
because Request for Quotations Number AHRQ-15-10003 does not
disclose, as required by 41 U.S.C. § 3306(c)(1)(C), the relative importance
of the announced Price and non-Price evaluation factors.
Protestor claims that “AHRQ's noncompliance with the Statutory mandate of 41 U.S.C.
§ 3306(c)(1)(C) left these Offerors guessing about the weighting of all of the announced
Evaluation Factors relative to evaluated total Prices.”
On February 27, 2015, defendant filed a motion to dismiss 5 protestor’s complaint
pursuant to Rule 12(b)(6) (2014) of the Rules of the United States Court of Federal Claims
(RCFC). Defendant claims that “Visual Connections acknowledges that it did not raise its
4 The GAO decision denied the protest on the merits. In a footnote, the GAO indicated,
“Visual also complains that the RFQ did not indicate the relative importance of the price
and non-price evaluation factors. This complaint, submitted after quotations were
submitted, is not timely filed and will not be considered.” (citing 4 C.F.R. § 21.2(a)(1)
(2014)).
5 Although defendant filed a motion to dismiss, it did not seek dismissal on the ground
that protestor was challenging the award of a task order. As defendant indicated in a
notice to the court, “GSA FSS task order purchases, such as the RFQ here, are distinct
from contracts entered into by executive agencies under FASA [Federal Acquisition
Streamlining Act]. FASA provisions do not affect or apply to acquisitions conducted under
the GSA FSS, FAR Part 8.4.” As indicated in Innovative Management Concepts, Inc. v.
United States, 119 Fed. Cl. 240 (2014), “FASA confines the court's jurisdiction to
adjudicate claims that challenge the underlying procurement vehicle, not any subsequent
specific task order or award.” Id. at 245 (citing SRA Int'l, Inc. v. United States, 766 F.3d
1409, 1413 (Fed. Cir. 2014)). Visual Connections agrees with defendant, indicating that
“[t]his Court's jurisdiction to hear and consider this Post-Award Procurement Protest is
not precluded by 41 U.S.C. § 4106(f) which vests with the United States Government
Accountability Office (GAO) exclusive jurisdiction to hear and consider Procurement
Protests concerning Competitions for individual Task Orders conducted under Task Order
Contracts.”
5
challenge to the terms of the RFQ prior to the deadline for the submission of quotes.”
Therefore, defendant argues, “[b]y failing to file its protest prior to AHRQ’s receipt of
quotes, Visual Connections waived its right to challenge the terms of the RFQ.” In
response, protestor argues that the “Acquisition was unlawful,” and, therefore, waiver
does not apply. Alternatively, protestor argues that the RFQ was facially ambiguous and
did not trigger a duty to inquire before submission of proposals.
DISCUSSION
Defendant’s motion to dismiss for failure to state a claim alleges that “Visual
Connections failed to make a timely objection to the terms of the RFQ, and, consequently,
waived its challenge.” (footnote omitted). It is well established that “‘subject-matter
jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or
waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v.
Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts have an independent obligation to
ensure that they do not exceed the scope of their jurisdiction, and therefore they must
raise and decide jurisdictional questions that the parties either overlook or elect not to
press.” Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also
Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject-
matter jurisdiction, courts are obligated to consider sua sponte issues that the parties
have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)
(“Courts have an independent obligation to determine whether subject-matter jurisdiction
exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at
514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court
has a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v.
Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng’g, Inc.
v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always
look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a
tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the
tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med.
Ctr., 133 S. Ct. 817, 824 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506 (“The
objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party,
or by a court on its own initiative, at any stage in the litigation, even after trial and the
entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364
n.1 (Fed. Cir. 2012) (“An objection to a court’s subject matter jurisdiction can be raised by
any party or the court at any stage of litigation, including after trial and the entry of
judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506–07)); Rick’s Mushroom Serv.,
Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge,
or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh
v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United
States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact,
“[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even
where . . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am.
Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134
F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.),
6
cert. denied, 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.
granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S.
975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid
Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court
must always determine for itself whether it has jurisdiction to hear the case before it, even
when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614
F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909 (2011).
In examining what must be pled in order to state a claim, a plaintiff need only state
in the complaint “a short and plain statement of the claim showing that the pleader is
entitled to relief.” RCFC 8(a)(2) (2014); Fed. R. Civ. P. 8(a)(2) (2015); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The United States Supreme Court stated:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, [Conley v. Gibson, 355 U.S. 41, 47
(1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d
247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the “grounds” of
his “entitle[ment] to relief” requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do, see
Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as a factual
allegation”). Factual allegations must be enough to raise a right to relief
above the speculative level, see 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright &
Miller) (“[T]he pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a legally cognizable
right of action”), on the assumption that all the allegations in the complaint
are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327
(1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a
judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes,
416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it
appears “that a recovery is very remote and unlikely”) . . . . [W]e do not
require heightened fact pleading of specifics, but only enough facts to state
a claim to relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56, 570 (footnote and other citations omitted;
omissions in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. at 555–57, 570); A&D Auto Sales, Inc. v. United States, 748
F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Kam-Almaz v. United States, 682
F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as alleged ‘must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
at 557)); Totes-Isotoner Corp. v. United States, 594 F.3d 1346, 1354–55 (Fed. Cir.), cert.
denied, 131 S. Ct. 92 (2010); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed.
Cir.) (“In order to avoid dismissal for failure to state a claim, the complaint must allege
7
facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.”
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557)), reh’g and reh’g en banc denied
(Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Cambridge v. United States, 558
F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff must plead factual allegations that support
a facially ‘plausible’ claim to relief in order to avoid dismissal for failure to state a claim.”
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)); Cary v. United States, 552 F.3d
1373, 1376 (Fed. Cir.) (“The factual allegations must be enough to raise a right to relief
above the speculative level. This does not require the plaintiff to set out in detail the facts
upon which the claim is based, but enough facts to state a claim to relief that is plausible
on its face.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570)), reh’g denied (Fed.
Cir.), cert. denied, 557 U.S. 937 (2009); Vargas v. United States, 114 Fed. Cl. 226, 232
(2014); Fredericksburg Non-Profit Housing Corp. v. United States, 113 Fed. Cl. 244, 253
(2013), aff’d, F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp. Capital Corp. v. United
States, 93 Fed. Cl. 720, 726–27 (2010), appeal dismissed, 454 F. App’x 900 (Fed. Cir.
2011); Legal Aid Soc’y of New York v. United States, 92 Fed. Cl. 285, 292, 298, 298 n.14
(2010).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (“In addition, when ruling on a defendant’s motion to
dismiss, a judge must accept as true all of the factual allegations contained in the
complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56 (citing Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether
on the ground of lack of jurisdiction over the subject matter or for failure to state a cause
of action, the allegations of the complaint should be construed favorably to the pleader.”),
abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982), recognized by
Davis v. Scherer, 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States, 464
F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d
1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343
(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906
(2003).
Defendant indicates that protestor’s “sole challenge” is that the RFQ did not
disclose the “‘relative importance of the announced Price and non-Price factors.’”
Defendant alleges that “[b]y failing to file its protest prior to AHRQ’s receipt of quotes,
Visual Connection waived its right to challenge the terms of the RFQ,” because, citing to
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007), “[a]n
offeror must challenge the terms of the RFQ prior to the due date for quote submission
or else the plaintiff waives such an argument.”
In Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, the United States Court
of Appeals for the Federal Circuit addressed if an offeror had the opportunity to object to
a patent error in the terms of a solicitation, but failed to do so, did the offeror waive the
right to challenge that same error in a subsequent bid protest. See id. at 1313. The
Federal Circuit noted that decisions of the Court of Federal Claims had concluded “that
8
where there is a ‘deficiency or problem in a solicitation . . . the proper procedure for the
offeror to follow is not to wait to see if it is the successful offeror before deciding whether
to challenge the procurement, but rather to raise the objection in a timely fashion.’” Blue
& Gold Fleet, L.P. v. United States, 492 F.3d at 1314 (quoting N.C. Div. of Servs. for the
Blind v. United States, 53 Fed. Cl. 147, 165 (2002), aff’d, 60 F. App’x 826 (Fed. Cir. 2003))
(omission in original); see also Draken Int’l, Inc. v. United States, No. 14-1005C, 2015
WL 644055, at *7 (Fed. Cl. Feb. 13, 2015). In Blue & Gold, the Federal Circuit held:
[A] party who has the opportunity to object to the terms of a government
solicitation containing a patent error and fails to do so prior to the close of
the bidding process waives its ability to raise the same objection
subsequently in a bid protest action in the Court of Federal Claims.
Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1313; see also Universal Marine
Co., K.S.C. v. United States, No. 14–1115C, 2015 WL 545861, at *8 (Fed. Cl. Feb. 10,
2015); Northeast Constr., Inc. v. United States, 119 Fed. Cl. 596, 609 (2015); Innovative
Mgmt. Concepts, Inc. v. United States, 119 Fed. Cl. 240, 245 (2014); CliniComp Int’l, Inc.
v. United States, 117 Fed. Cl. 722, 737-38 (2014) (“The rule in Blue and Gold Fleet thus
bars a protester from raising objections to patent errors or ambiguities in the terms of a
solicitation after the closing of bidding if such errors or ambiguities were apparent on the
face of the solicitation,” and “[w]hen a solicitation contains a patent ambiguity, the offeror
has ‘“a duty to seek clarification from the government, and its failure to do so precludes
acceptance of its interpretation”’ in a subsequent court action.” (quoting Blue & Gold Fleet
L.P. v. United States, 492 F.3d at 1313 (quoting Stratos Mobile Networks USA, LLC v.
United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000)))). The Federal Circuit in Blue & Gold
reasoned that such a waiver rule, “requir[ing] that a party object to solicitation terms during
the bidding process,” furthered the mandate in 28 U.S.C. § 1491(b) that, “‘the courts shall
give due regard to the interests of national defense and national security and the need
for expeditious resolution of the action.’” Blue & Gold Fleet, L.P. v. United States, 492
F.3d at 1313 (quoting 28 U.S.C. § 1491(b)(3)) (emphasis in original).
The Federal Circuit also explained:
“It would be inefficient and costly to authorize this remedy after offerors and
the agency had expended considerable time and effort submitting or
evaluating proposals in response to a defective solicitation. Vendors cannot
sit on their rights to challenge what they believe is an unfair solicitation, roll
the dice and see if they receive award [sic] and then, if unsuccessful, claim
the solicitation was infirm.”
Id. at 1314 (alteration in original) (quoting Argencord Mach. & Equip., Inc. v. United States,
68 Fed. Cl. 167, 175 n.14 (2005)); see also Bannum, Inc. v. United States, 115 Fed. Cl.
257, 274 (2014).
The Federal Circuit in COMINT Systems Corp. v. United States, 700 F.3d 1377
(Fed. Cir. 2012), extended the logic of Blue & Gold to all pre-award situations, as follows:
9
In Blue & Gold Fleet, L.P. v. United States, this court held that “a party who
has the opportunity to object to the terms of a government solicitation
containing a patent error and fails to do so prior to the close of the bidding
process waives its ability to raise the same objection afterwards in a
§ 1491(b) action in the Court of Federal Claims.” [Blue & Gold Fleet, L.P. v.
United States,] 492 F.3d 1308, 1315 (Fed. Cir. 2007). Comint points out that
Blue & Gold's holding does not explicitly apply to this case since Comint
had no opportunity to challenge the solicitation before “the close of the
bidding process,” Amendment 5 having been adopted after the bidding
process closed. Amendment 5 was, however, adopted before the award,
and we think the reasoning of Blue & Gold applies to all situations in which
the protesting party had the opportunity to challenge a solicitation before
the award and failed to do so.
There is no question that Comint could have challenged the solicitation
before the award. The Federal Acquisition Regulations require that agency
contracting officers “consider all protests . . . whether protests are submitted
before or after award.” 48 C.F.R. § 33.102(a) (emphasis added). If efforts
to obtain relief from the contracting officer fail, the Tucker Act specifically
authorizes pre-award challenges. The statute gives the Claims Court
“jurisdiction to render judgment on an action by an interested party objecting
to a solicitation by a Federal agency,” and further provides that the Claims
Court has jurisdiction “without regard to whether suit is instituted before or
after the contract is awarded.” 28 U.S.C. § 1491(b)(1).
The same policy underlying Blue & Gold supports its extension to all pre-
award situations. In Blue & Gold, we explained:
In the absence of a waiver rule, a contractor with knowledge
of a solicitation defect could choose to stay silent.... If its [ ]
proposal loses to another bidder, the contractor could then
come forward with the defect to restart the bidding process,
perhaps with increased knowledge of its competitors. A
waiver rule thus prevents contractors from taking advantage
of the government and other bidders, and avoids costly after-
the-fact litigation.
[Blue & Gold Fleet, L.P. v. United States,] 492 F.3d at 1314.
To be sure, where bringing the challenge prior to the award is not
practicable, it may be brought thereafter. But, assuming that there is
adequate time in which to do so, a disappointed bidder must bring a
challenge to a solicitation containing a patent error or ambiguity prior to the
award of the contract.
10
COMINT Sys. Corp. v. United States, 700 F.3d at 1382 (footnote omitted; first alteration
in original); see also Comm’n Constr. Servs., Inc. v. United States, 116 Fed. Cl. 233, 261-
62 (2014) (“[P]arties who have the opportunity to object to the terms of a solicitation
containing patent errors or ambiguities and fail to do in a timely fashion waive their ability
to subsequently raise the same objections. . . . The Blue & Gold waiver rule as extended
by COMINT is simple: if there is a patent ambiguity or error in the solicitation, a plaintiff
must seek redress in court prior to award.”).
The Federal Circuit more recently indicated that:
Our waiver rule implements Congress’s directive in the Administrative
Dispute Resolution Act (ADRA) of 1996, Pub. L. No. 104-320, § 12, 110
Stat. 3870, 3874, that courts “shall give due regard to . . . the need for
expeditious resolution” of protest claims. 28 U.S.C. § 1491(b)(3); see Blue
& Gold, 492 F.3d at 1313. A waiver rule implements this statutory mandate
by reducing the need for the “inefficient and costly” process of agency
rebidding “after offerors and the agency ha[ve] expended considerable time
and effort submitting or evaluating proposals in response to a defective
solicitation.” Blue & Gold, 492 F.3d at 1314 (internal quotation marks and
citation omitted). In this context, clarity is not just readily achievable but
important. Requiring that the prescribed formal routes for protest be
followed (to avoid waiver) reduces uncertainty about whether the issue is
joined and must be resolved, and thereby helps prevent both the wasted
and duplicative expenses (of all bidders and the government) and the
delayed implementation of the contract that would likely follow from laxer
standards of timely presentation of solicitation challenges.
Bannum, Inc. v. United States, 779 F.3d 1376, 1380 (Fed. Cir. 2015).
Visual Connections tries to distinguish its case from the Blue & Gold line of cases,
by arguing that because of statutory requirements, Blue & Gold is not applicable. In the
complaint, protestor notes that although
the Federal Circuit concluded that Blue & Gold Fleet was a Case of no-
harm, no-foul, that “there appear[ed] to be no harm to the intended
beneficiaries of the Service Contract Act.” This Post-Award Procurement
Protest is not a Case of no-harm, no-foul. AHRQ's noncompliance with the
Statutory mandate of 41 U.S.C. § 3306(c)(1)(C) left these Offerors guessing
about the weighting of all of the announced Evaluation Factors relative to
evaluated total Prices, Prices which depended on each Offeror's proposed
staffing levels.
To explain why this RFQ is not in compliance with the applicable statutes, protestor
first argues that: “Title 41 U.S. Code Chapter 1, Subchapter I-SUBTITLE DEFINITIONS,
sets out at 41 U.S.C. § 111 the definition of the term ‘Procurement.’ This Acquisition being
conducted by the United States Department of Health & Human Services is such a
11
‘Procurement.’ Title 41 U.S. Code Chapter 33-PLANNING AND SOLICITATION, at 41
U.S.C. § 3305(a)(2) allows the use of Simplified Procedures for small dollar-value
commercial purchases.” (capitalization in original). Protestor, citing 41 U.S.C.
§ 3305(a)(2) (2012), claims that “[t]hese Simplified Procedures Acquisitions may not be
greater than $5,000,000 and they may require only ‘Commercial Items.’” Section 3305 of
Title 41, “Simplified procedures for small purchases” provides in part:
(a) Authorization.--To promote efficiency and economy in contracting and
to avoid unnecessary burdens for agencies and contractors, the Federal
Acquisition Regulation shall provide for special simplified procedures for
purchases of property and services for amounts--
(1) not greater than the simplified acquisition threshold; and
(2) greater than the simplified acquisition threshold but not greater than
$5,000,000 for which the contracting officer reasonably expects, based on
the nature of the property or services sought and on market research, that
offers will include only commercial items.
41 U.S.C. § 3305(a).
Protestor argues that “this Acquisition is greater than $5,000,000, the statutory
ceiling for Simplified Procedures Acquisitions. Included in this Acquisition is an unfunded
Option for Application Development and this unfunded Option has a labor-hour ceiling
Price of $7,500,000.”6 Therefore, protestor claims “[t]he terms of this Request for
Quotations themselves demonstrate this Acquisition does not qualify as a Simplified
Procedures Acquisition.” It is not disputed that the AHRQ acquisition was not a simplified
acquisition. Defendant correctly argues that “FSS acquisitions are not simplified
acquisitions under 41 U.S.C. § 3305.” As noted in Systems Plus, Inc. v. United States, 68
Fed. Cl. 206 (2005), FAR “subpart 13.303–5(b)(1) states that neither the simplified
acquisition threshold for the entire contract ($5 million), nor the limitation for individual
purchases against BPAs (also $5 million) apply to FSS contracts.” Sys. Plus, Inc. v.
United States, 68 Fed. Cl. at 210.7
6Protestor refers to CLIN #2, which states, “CLIN 2 is an Optional Line item for Application
Development work. This effort is not funded at this time. Should AHRQ need application
development projects, an option will be exercised through the issuance of a modification
under CLIN 2 (creating additional sub-CLINs). The ceiling amount shown applies to the
entire order period.”
7 FAR 13.303–5(b)(1) provides that “[t]he simplified acquisition threshold and the $6.5
million limitation for individual purchases ($12 million for purchases entered into under
the authority of 12.102(f)(1)) do not apply to BPAs established in accordance with 13.303–
2(c)(3).” FAR 13.303–5(b)(1) (2014). FAR 13.303–2(c) provides that “BPAs may be
established with . . . (3) Federal Supply Schedule contractors, if not inconsistent with the
terms of the applicable schedule contract.” FAR 13.303–2(c) (2014).
12
Protestor alleges that the requirements of 41 U.S.C. § 3306 (2012) apply to the
RFQ and asserts, “[h]ad this Acquisition instead publicized, as required by 41 U.S.C.
§ 3306(c)(1)(C), the relative importance of the announced Price and non-Price evaluation
factors, Offerors would have had the opportunity promised them by Statute.”
The statute at 41 U.S.C. § 3306 provides, in part:
(b) Contents of solicitation.--In addition to the specifications described in
subsection (a), each solicitation for sealed bids or competitive proposals
(other than for a procurement for commercial items using special simplified
procedures or a purchase for an amount not greater than the simplified
acquisition threshold) shall at a minimum include--
(1) a statement of--
(A) all significant factors and significant subfactors that the
executive agency reasonably expects to consider in
evaluating sealed bids (including price) or competitive
proposals (including cost or price, cost-related or price-related
factors and subfactors, and noncost-related or nonprice-
related factors and subfactors); and
(B) the relative importance assigned to each of those factors
and subfactors[.]
...
(c) Evaluation factors.--
(1) In general.--In prescribing the evaluation factors to be
included in each solicitation for competitive proposals, an
executive agency shall--
(A) establish clearly the relative importance assigned to the
evaluation factors and subfactors, including the quality of the
product or services to be provided (including technical
capability, management capability, prior experience, and past
performance of the offeror);
(B) include cost or price to the Federal Government as an
evaluation factor that must be considered in the evaluation of
proposals; and
(C) disclose to offerors whether all evaluation factors other
than cost or price, when combined, are--
(i) significantly more important than cost or price;
13
(ii) approximately equal in importance to cost or price; or
(iii) significantly less important than cost or price.
41 U.S.C. § 3306.8 Protestor also argues that:
Agency noncompliance with the Statutory mandate of 41
U.S.C. § 3306(c)(1)(C) is more than an alleged impropriety which can be
waived by categorical application of the prudential timeliness Bid Protest
Regulation devised by GAO and then subsequently considered in Blue &
Gold Fleet. There is a difference between Agency noncompliances with
Agency Requirements and Regulations, noncompliances, which can be
considered as alleged improprieties, and Agency noncompliances with
Statutes, Statutory mandates which cannot be waived.
(emphasis in original).9
8 Defendant indicates that “it is worth noting that 41 U.S.C. § 3306(c)(1)(C), the statute
relied upon by Visual Connections, specifically applies to ‘competitive proposals,’” and
defendant argues, citing to Systems Plus, Inc. v. United States, 68 Fed. Cl. at 209-10,
that the Court of Federal Claims “recognized that FSS procurements conducted under
FAR Part 8.4 are not ‘competitive proposals’ like negotiated procurements under FAR
Part 15.” Defendant also argues that “unlike FAR Part 15, FAR Part 8.4 contains no
requirement that agencies disclose the relative importance of the price and non-price
factors.”
9 Protestor also claims that the RFQ did not address the relative importance of the
technical and price factors. As noted above, the parties agree that RFQ did not address
the relative importance of the price and the non-price factors. Although the court does
not address the merits of the protest, even if the court agreed with protestor that the
relative importance of the terms was not clear, the court notes that the RFQ indicated that
“[t]he quote(s) representing the best value will be selected.” As indicated by the Federal
Circuit, “[i]t is well-established that contracting officers have a great deal of discretion in
making contract award decisions, particularly when, as here, the contract is to be awarded
to the bidder or bidders that will provide the agency with the best value.” Banknote Corp.
of Am. Inc. v. United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004) (citations omitted); see
also E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (“Procurement
officials have substantial discretion to determine which proposal represents the best value
for the government.”); Akal Sec., Inc. v. United States, 103 Fed. Cl. 310, 329 (2011);
Brooks Range Contract Servs., Inc. v. United States, 101 Fed. Cl. 699, 707 (2011) (“[A]
plaintiff’s burden ‘is elevated where the solicitation contemplates award on a “best value”
basis.’” (internal citations omitted)); PlanetSpace Inc. v. United States, 96 Fed. Cl. 119,
125 (2010) (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed.
Cir.), reh’g denied (Fed. Cir. 2004) (“An agency's contract award is thus least vulnerable
to challenge when based upon a best value determination.”)).
14
With reference to protestor’s argument that Blue & Gold’s waiver analysis does not
apply to statutory violations, defendant claims “[t]his position is wholly unsupported by the
law.” Defendant correctly notes that “[i]n Blue & Gold Fleet, the Federal Circuit did not
exclude errors based upon statutory requirements from the waiver rule.” Moreover, as
indicated by defendant, “Blue & Gold Fleet itself involves an alleged statutory violation,
there the applicability of the Service Contract Act.” (citing Blue & Gold Fleet, L.P. v. United
States, 492 F.3d at 1315).
In Blue & Gold Fleet, L.P. v. United States, the plaintiff challenged the National
Park Service’s award of a contract to Hornblower Yachts, Inc. (Hornblower) for ferry
services to Alcatraz Island. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d at
1310-11. The plaintiff argued that Hornblower’s proposal did not include employee wage
and benefits information required by the Service Contract Act, thus making the Park
Service’s evaluation of the cost of Hornblower’s proposal flawed. See id. at 1312. The
Federal Circuit acknowledged that “[b]y statute, the Park Service must
‘evaluate . . . proposals and make an award based solely on the factors specified in the
solicitation.’” Id. at 1313 (quoting 10 U.S.C. § 2305(b)(1)). Moreover, the Federal Circuit
acknowledged that “[i]n this case, it is true that the decision not to apply the Service
Contract Act to the contract may have influenced the evaluation of the proposals;
however, the Park Service made this decision during the solicitation, not evaluation,
phase of the bidding process.” Id. The Federal Circuit noted that the solicitation “did not
include any requirement that the bidders consider the Service Contract Act,” id., and that
the plaintiff had not raised any objection to the exclusion of Service Contract Act
requirements from the Solicitation prior to the submission of proposals. Therefore, the
United States Court of Appeals for the Federal Circuit found that the plaintiff actually was
challenging the terms of the solicitation, not the agency’s evaluation of Hornblower’s
proposal. See id.
Therefore, it appears that the Federal Circuit did not limit its decision in Blue &
Gold to non-statutory violations. Moreover, in the years since the Blue & Gold decision,
the Federal Circuit has expanded the waiver rule. In COMINT, the Federal Circuit
expanded the waiver rule, noting that “[t]he same policy underlying Blue & Gold supports
its extension to all pre-award situations,” COMINT Sys. Corp. v. United States, 700 F.3d
at 1382, and indicated that “assuming that there is adequate time in which to do so, a
disappointed bidder must bring a challenge to a solicitation containing a patent error or
ambiguity prior to the award of the contract.” Id. Recently, in Bannum, the Federal Circuit
found waiver applied even when the protestor had previously indicated its dissatisfaction
with the solicitation. See Bannum, Inc. v. United States, 779 F.3d at 1380. The Federal
Circuit in Bannum indicated that “[i]t is undisputed that the government received notice of
Bannum's dissatisfaction with the PREA-compliance requirement before awards were
made. We conclude, however, that mere notice of dissatisfaction or objection is
insufficient to preserve Bannum's defective-solicitation challenge.” Id. As the Federal
Circuit in Bannum explained, “[h]aving failed to follow any of the various protest
procedures available to bidders for swiftly resolving objections to the terms of the
solicitation, Bannum cannot raise the same challenge in the Court of Federal Claims now
that an award has been made. Bannum waived the solicitation challenge by not properly
15
raising it before the close of bidding.” Id. at 1381 (citing Blue & Gold Fleet, L.P. v. United
States, 492 F.3d at 1314).
Protestor also cites to Missouri Pacific Railroad Co. v. United States, 214 Ct. Cl.
623, 558 F.2d 596 (1977), for the proposition that “[t]he requirements imposed by
Treasury regulations must be distinguished from those imposed by statute; the former
requirements may be waived while the latter may not.” 214 Ct. Cl. at 623, 558 F.2d at
599. Defendant claims that “Visual Connections’s reliance on Missouri Pacific Railroad
Co. v. United States, 558 F.2d 596 (Ct. Cl. 1977) is also misplaced.” In Missouri Pacific
Railroad, the United States Court of Claims determined that a statutory requirement of
filing a timely claim for income tax refund “cannot be waived.” Missouri Pac. R.R. Co. v.
United States, 214 Ct. Cl. at 623, 558 F.2d at 599. From this 1977 tax case, protestor
asserts that “[t]here is a difference between Agency noncompliances with Agency
Requirements and Regulations, noncompliances which can be considered as alleged
improprieties, and Agency noncompliances with Statutes, Statutory mandates which
cannot be waived.” (emphasis in original). Defendant claims that “[s]imply put, the
distinction between an agency’s ability to waive statutory requirements and its own
regulations is not relevant in any way to the waiver rule announced in Blue & Gold Fleet.”
Defendant explains, had Visual Connections timely protested the terms of the RFQ, and
if protestor had been successful in its challenge, “AHRQ would have been required to
amend its RFQ such that the alleged statutory violation was eliminated from the RFQ.”
The remedy, as articulated by defendant, would have been a timely challenge to the RFQ.
The court finds no difference in Visual Connections’ case and the series of waiver
cases decided by the Federal Circuit. Moreover, as defendant notes, if protestor believed
that there may have been a statutory violation with the RFQ, the time for raising that
challenge would have been before the proposals were due. The court determines that
an offeror, such as Visual Connections, which has the opportunity to object to the terms
of a government solicitation containing an alleged patent error, including a statutory
violation, and fails to do so prior to award, waives the ability to raise the same objection
in a bid protest case filed in this court. See Blue & Gold Fleet, L.P. v. United States, 492
F.3d at 1314.
Alternatively, protestor asserts that the RFQ is “facially ambiguous,” and,
“therefore it was a latent ambiguity which triggered no duty to inquire.” Protestor argues
the RFQ was facially ambiguous because “[t]he Evaluation Factors and Evaluation
Schema announced by Defendant United States Department of Health & Human
Services’ AHRQ’s Request for Quotations entirely follow the precepts set out for a
Simplified Procedures Acquisition competed among the many holders of Multiple Award
Schedule Contracts,” while protestor also argues, “[b]ut it is equally reasonable to have
concluded that the announced conditions for this Request for Quotations (an Acquisition
greater than $5,000,000 set-aside and restricted only to those Offerors which also are
Service-Disabled, Veteran-Owned Small Business Concerns) precluded the use of
Simplified Acquisition Procedures.” Protestor quotes from States Roofing Corp. v. Winter
for the proposition that:
16
We agree with States Roofing that any ambiguity in the contract was latent,
rather than patent. As precedent explains, there must be a glaring conflict
or obvious error in order to impose the consequences of misunderstanding
on the contractor. See HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1334
(Fed. Cir. 2004) (“Where an ambiguity is not sufficiently glaring to trigger
the patent ambiguity exception, it is deemed latent and the general rule of
contra proferentem applies.”); Blount Bros. Const. Co. v. United States, ,
346 F.2d 962, 973, 171 Ct. Cl. 478 (Ct. Cl. 1965) (“[Contractors] are not
expected to exercise clairvoyance in spotting hidden ambiguities in the bid
documents, and they are protected if they innocently construe in their own
favor an ambiguity equally susceptible to another construction, for . . . the
basic precept is that ambiguities in contracts drawn by the Government are
construed against the drafter.”).
States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 (Fed. Cir. 2009).10
“A solicitation term is ambiguous if ‘more than one meaning is reasonably
consistent with [its] language.’” Furniture by Thurston v. United States, 103 Fed. Cl. 505,
511 (2012) (quoting Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 977 (Fed. Cir.
1996) (modification in original). The United States Court of Appeals for the Federal Circuit
has stated that, “[t]o show an ambiguity [in contract language,] it is not enough that the
parties differ in their respective interpretations of a contract term.” NVT Techs., Inc. v.
United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In order to demonstrate ambiguity,
the interpretations offered by both parties must “‘fall within a “zone of reasonableness.”’”
Id. (quoting Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (1999) (citations
omitted)); see also Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed.
Cir. 2007) (“[I]n interpreting a solicitation, ‘[it] is ambiguous only if its language is
susceptible to more than one reasonable interpretation. . . . If the provisions of the
solicitation are clear and unambiguous, they must be given their plain and ordinary
meaning.’” (quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353)).
As noted in a bid protest decision, “[a] patent ambiguity in a solicitation ‘is one that
is “obvious, gross, [or] glaring.”’” CliniComp Int’l, Inc. v. United States, 117 Fed. Cl. at 738
(quoting NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed. Cir. 2004) (quoting
H & M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974))) (alteration in
original); see also States Roofing Corp. v. Winter, 587 F.3d at 1372. “A latent ambiguity
‘is not apparent on the face of the solicitation and is not discoverable through reasonable
or customary care.’” J.C.N. Constr., Inc. v. United States, 107 Fed. Cl. 503, 512 (2012)
(quoting Guzar Mirbachakot Transp. v. United States, 104 Fed. Cl. 53, 65 (2012)). “‘An
ambiguity is latent if it is not apparent on the face of the solicitation and is not discoverable
through reasonable or customary care.’” AM Gen., LLC v. United States, 115 Fed. Cl.
653, 670 (2014) (quoting Linc Gov't Servs. v. United States, 96 Fed. Cl. 672, 708 (2010)).
The distinction between a latent ambiguity and a patent ambiguity is “critical for the
10The court notes that States Roofing, like the other cases cited by protestor in its brief
regarding this issue, are not bid protest cases, but are Federal Circuit decisions which
have been appealed from the Board of Contract Appeals.
17
purpose of waiver, since ‘“a party who has the opportunity to object to the terms of a
government solicitation containing a patent error and fails to do so prior to the close of
the bidding process waives its ability to raise the same objection afterwards[.]”’” Archura
LLC v. United States, 112 Fed. Cl. 487, 500 (2013) (quoting Lab. Corp. of Am. v. United
States, 108 Fed. Cl. 549, 565–66 (2012) (quoting Blue & Gold Fleet, L.P. v. United States,
492 F.3d at 1315) (alteration in original). As noted in Archura, “[w]hether an ambiguity is
patent or latent is a question of law, and a determination to be made on a case-by-case
basis.” Id. (citing Interstate Gen. Gov't Contractors, Inc. v. Stone, 980 F.2d 1433, 1435
(Fed. Cir. 1992)); see also CBY Design Builders v. United States, 105 Fed. Cl. 303, 327
(2012) (“Whether a provision in a solicitation is ambiguous, and whether an ambiguity is
latent or patent, are also questions of law over which courts exercise independent review
on a case-by-case basis.”).
Although protestor argues that “[w]here conflicting interpretations are equally
reasonable, then the ambiguity is latent, not patent,” as noted above, and as pointed out
by defendant, “[i]dentification of a contract term with ‘more than one meaning []
reasonably consistent with the contract language,” is merely the first step in identifying an
ambiguity; the court must then determine if the ambiguity is patent or latent.’” (quoting
Grumman Data Systems Corp. v. Dalton, 88 F.3d at 997) (alteration in original). Indeed,
it is the court’s role to determine if the ambiguity is patent or latent. See Archura LLC v.
United States, 112 Fed. Cl. at 500; see also J.C.N. Constr., Inc. v. United States, 107
Fed. Cl. at 512 (“If the court determines that an ambiguity exists, it must then determine
whether the ambiguity is patent or latent.”).
Defendant correctly notes that protestor’s claim of “conflicting interpretations” “just
two sides of the same coin: Visual Connections contends that an offeror could have
reasonably concluded (1) that the terms of the RFQ precluded the use of are really
simplified acquisition procedures; or (2) that the RFQ was subject to simplified acquisition
procedures, even though this result would violate Statute.” (internal citations and
quotation omitted). Therefore, defendant argues that “[u]nder either interpretation
proffered by Visual Connections, the alleged violation of 41 U.S.C. § 3305(a)(2) was
apparent on the face of the RFQ. Accordingly, Visual Connections is alleging a patent
error to the terms of the RFQ which must have been challenged prior to AHRQ’s receipt
of quotes.”
Moreover, protestor undermines its own argument that the ambiguity was latent.
In its conclusion to its response to defendant’s motion to dismiss, protestor seeks a
declaration that the award to intervenor “is unlawful because Request for Quotations
Number AHRQ-15-10003 makes use of Simplified Acquisition Procedures in violation of
41 U.S.C. § 3305(a)(2),” and claims that “[t]he terms of this Request for Quotations
themselves demonstrate this Acquisition does not qualify as a Simplified Procedures
Acquisition.”11 As noted above, when arguing that AHRQ was not in compliance with the
relevant statutes, protestor claims AHRQ committed an “obvious Statutory violation
11Defendant argues that, “[p]utting aside the fact that FSS acquisitions are not simplified
acquisitions under 41 U.S.C. § 3305, Visual Connections is alleging a patent error with
the terms of the RFQ, not a latent ambiguity or defect.”
18
before July 28th, 2014, the date set for receipt of Quotations.” (emphasis added). If the
violation was obvious, it would be a patent ambiguity, not a latent one, and should have
been raised before proposals were submitted. Any ambiguity in the RFQ was patent, and
the waiver analysis discussed above applies.
CONCLUSION
As determined above, Visual Connections failed to challenge the terms of the RFQ
before submitting its proposal, and, the alleged ambiguity in the RFQ should be classified
as a patent one. Therefore, protestor has waived its right to subsequently challenge the
relative importance of the announced price and non-price evaluation factors in this court.
Defendant’s motion to dismiss is GRANTED. Protestor’s complaint is DISMISSED. The
Clerk of the Court shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
19