Being “Highly Desirable” Doesn’t Make a Specification Mandatory
When pursuing a government contracting opportunity, it’s always important to read and understand the solicitation’s description of the contract requirements your proposal must address. In this context, as in most others, language matters. Indeed, as the recent Government Accountability Office (GAO) decision in The Lioce Group, B-416896 (January 7, 2019), reminds us, the language the procuring agency uses to describe its requirements can have a profound impact on who wins the award—and what the government purchases under the resulting contract.
The protest involved a request for quotations (RFQ) posted by the National Labor Relations Board (NLRB) to vendors holding a certain special item number (SIN) under GSA Federal Supply Schedule (FSS) No. 36-office, imaging and document solutions. The RFQ contemplated the issuance of a fixed-price task order for the lease and maintenance, to include copier supplies, of copier devices to be utilized at NLRB offices nationwide. Award of the order was to be made on a lowest-priced, technically acceptable basis, with quotations evaluated based on the following factors: technical, past performance, and price.
With respect to the technical factor, the RFQ required the vendor to “demonstrate its understanding of the requirements and provide a concise, detailed and thorough response of their capability to fulfilling the requirement[s] in the Statement of Work [SOW].” It also provided that technical capability would be evaluated on a Go/No-Go basis in response to the requirements stated in the SOW of the solicitation.” The RFQ also instructed vendors to submit a fixed price to support the requirement and warned that “quotes containing exceptions, qualifications, conditions, assumptions or any other deviations from the solicitation would be considered non-responsive and rejected by the Government and not considered for award.”
The RFQ’s SOW contained a sizable list of specifications describing the functions the copier devices would be required to perform. As relevant to the protest, the SOW also stated: “The ability to deliver output, securely and encrypted, to one or more endpoints (such as Blob Storage, File System Storage, OneDrive, SharePoint) in the Microsoft Azure Cloud or Azure Government Cloud is highly desirable.” This functionality was referred to by the agency and The Lioce Group as a “scanning to the cloud” capability.
The NLRB reviewed the eight quotes received from vendors, asked clarification questions to all vendors, then considered their responses as part of its technical evaluation. While Lioce quoted a lower price than the awardee, Xerox, the technical evaluation board rated its quotation as technically unacceptable because it did not provide pricing for the scanning to the cloud capability, which the agency asserted was a mandatory requirement. Upon learning of the NLRB’s determination, Lioce protested, first to the agency, then to the GAO.
In its protest, Lioce contended that the agency’s evaluation of its proposal as technically unacceptable was unreasonable and inconsistent with the RFQ’s evaluation criteria because it was based on Lioce’s lack of pricing for the scanning to the cloud capability, which was not a mandatory requirement. The agency responded by asserting that scanning to the cloud was indeed a mandatory requirement, and Lioce had taken exception to it by not providing the pricing.
The GAO agreed with Lioce, finding that the agency’s evaluation of Lioce’s quotation was based upon an unreasonable interpretation of the solicitation. Faced with disputes as to what a solicitation requires, the GAO examines the plain language of the solicitation and reads the solicitation as a whole and in a manner that gives effect to all provisions; to be reasonable, and therefore valid, an interpretation must be consistent with such a reading. In this case, the GAO determined the agency’s interpretation of the solicitation to be unreasonable based upon the plain language of the RFQ, the context in which the disputed provision appears, and the permissive language used by the agency in the Q&As.
With respect to the plain language of the RFQ, it states that the ability to deliver output in the cloud is “highly desirable.” As the GAO notes, the common dictionary definition of “desirable” refers to “having pleasing qualities or properties,” or “worth seeking or doing as advantageous, beneficial, or wise.” Thus, on its face, the RFQ’s plain language does not impose a requirement to provide a scanning to the cloud capability. Nor did the agency cite any precedent for its contention that a function described as highly desirable may be interpreted as imposing a mandatory term or condition in a lowest-priced, technically acceptable procurement.
When considered in light of the rest of the RFQ, the use of the term “desirable” instead of “shall” or “must” further undercut the agency’s interpretation. Elsewhere in the RFP, the terms shall or must were used dozens of times to describe functions which neither party dispute are mandatory requirements. The GAO concluded that the agency’s recurring use of these clearly compulsory words reasonably indicates that a function instead described as “desirable” was merely preferred.
Despite the agency’s assertions to the contrary, the GAO held that the Q&As did not clarify, or otherwise state, that the scanning to the cloud capability was a required term. Indeed, the Q&A exchange on which the NLRB relied describes the capability as “recommended” and a “preference.” Such permissive language simply does not indicate that the scanning to the cloud capability is mandatory. As the GAO noted, the agency may have intended the Q&A to make clear its interpretation of the RFQ when responding to vendors’ questions, but it failed to do so and its reliance on the Q&As was, therefore, unavailing.
For these reasons, the GAO found that nothing in the RFQ, as amended, reasonably put vendors on notice that a quotation failing to provide pricing information for a scanning to the cloud capability would be found technically unacceptable—and that the agency lacked a reasonable basis for finding Lioce’s quotation technically unacceptable.
Contractors confronting evaluation results that appear to misconstrue the solicitation requirements should follow the GAO’s approach in this decision: consider the plain language in question, how it compares to the rest of the solicitation language, and any potential amendments in the Q&A. If these three factors are aligned like they were in Lioce, you should have a strong protest ground.
Contact Eric Whytsell for more information.