GAO’s recent decision in Barbaricum, LLC, B-418427.7 (Dec. 11, 2020) highlights the importance of carefully reviewing all Q&As issued as part of a solicitation.
The Army Material Command (AMC) issued a solicitation for training support services to provide “special operations forces (SOF) training for counter terrorism, counter narco-terrorism, counter proliferation and unconventional warfare missions using a mix of live, virtual, and constructive simulation scenarios.” Under the program management subfactor, offerors were required to provide a realistic military training packet and an after-action review (RMT/AAR) for a previously executed exercise. The solicitation stated that the RMT/AAR must be “produced organically.”
Because the solicitation did not define the phrase “produced organically,” several offerors submitted questions regarding the meaning of this phrase. In the first set of Q&A released, an offeror asked:
Request that you clarify “produced organically” to include RMT/AARs produced by either of the joint venture members. We believe this meets the intent of this language to ensure that the prime contractor has this experience without relying on subcontractors.
In response to this question about joint ventures, the agency stated that “produced organically” meant “[w]ork completed organically by any member of a team can be brought into any new team arrangement as a Prime.” (Q&A 17)
An offeror asked a follow-up question, requesting that the agency “[p]lease confirm that ‘produced organically’ means 100% produced by any Prime (i.e., all Joint Venture partners) or any of the offeror’s formal team members (i.e., all entities with signed Teaming Agreements).” The agency responded:
Submit a RMT packet and an AAR from a CRF, UW, or SA exercise that the Prime produced and submitted to the Government for approval. Offeror will only receive credit for work (RMT/AAR) produced organically. Credit will not be given for work done by another entity regardless of relationship, association, affiliation, etc. with offeror. (Q&A 86)
After the agency released this updated response, it received another question on the issue:
Pursuant to the Government’s answer to Question 17 which states that “Work completed organically by any member of a team can be brought into any new team arrangement,” will the Government confirm that a RMT/AAR produced by a teammate of the offeror is considered as being produced organically?
The agency responded with a reference to its previous update/revised response to Q&A 17, which incorporated the response in Q&A 86.
Barbaricum submitted a proposal that included an RMT/AAR produced by one of its subcontractors for an exercise on which the subcontractor had performed as a prime contractor. The AMC determined that Barbaricum’s proposal contained a deficiency, because Barbaricum’s inclusion of an RMT/AAR produced by its subcontractor failed to comply with a material requirement of the solicitation. Based on this deficiency, the agency concluded that Barbaricum was unacceptable under the capability factor.
Barbaricum filed a protest raising a number of challenges, including a challenge to the agency’s evaluation of its proposal under the capability factor. As to the RMT/AAR, Barbaricum argued that the solicitation did not prevent a subcontractor from producing these documents and that, to the extent its interpretation was different from the agency’s, that was due to a latent ambiguity in the solicitation and Q&A responses.
Barbaricum relied on the agency’s original response to Q&A 17, in which the agency stated that “produced organically” meant “[w]ork completed organically by any member of a team can be brought into any new team arrangement as a Prime.” Barbaricum claimed that this meant that it could include an RMT/AAR produced by Barbarium or a member of its team.
The agency disagreed and asserted that the solicitation and its Q&A responses informed offerors that a subcontractor’s RMT/AAR would not be considered. The agency stated that the answer to Q&A 17 had been revised and updated to include the language that “[c]redit will not be given for work done by another entity regardless of relationship, association, affiliation, etc. with [the] offeror.”
GAO agreed with the agency. GAO stated that “[t]o the extent the protester relies on the initial response to Question No. 17, the protester has not shown how that response could reasonably be understood to apply to Barbaricum’s offered teaming arrangement,” because the question sought clarification regarding joint venture primes and not prime-sub relationships. Furthermore, the updated and revised response to Q&A 17 stated that only a prime could produce the RMT/AAR.
GAO rejected Barbaricum’s argument that the solicitation and Q&A were ambiguous. Barbaricum argued that the Q&A could be interpreted such that a subcontractor could produce the RMT/AAR so long as the subcontractor had been the prime contractor on that prior contract. GAO concluded that Barbaricum’s interpretation was not reasonable, and therefore the solicitation and Q&A were not ambiguous.
This decision provides an important reminder that offerors must carefully read all Q&A that are issued, including any revisions and updates to previous Q&A responses, prior to submitting a proposal to ensure compliance with solicitation requirements. Failure to do so may lead to a rejection of a proposal as non-compliant.
Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard. She can be reached at swilson@berenzweiglaw.com.