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| 1 minute read

Protest POV: Don’t let your bid protest fall flat on its face: CFC rejects untimely challenge to ambiguity apparent on the face of solicitation

In a recent protest decision, the U.S. Court of Federal Claims (CFC) determined an alleged latent ambiguity was actually a patent ambiguity that should have been clarified prior to proposal submission. Protester, Eagle Hill Consulting, LLC, alleged the solicitation included a latent ambiguity regarding the Federal Emergency Management Agency’s (FEMA) evaluation of offerors’ price proposals. Eagle Hill argued the solicitation required offerors to include (and the agency to evaluate) information in all columns of the agency-provided pricing spreadsheet, beyond hourly labor rates. CFC found that FEMA had advised offerors that the agency would apply its own estimated labor hours and personnel quantity to offerors’ proposed labor rates, but simultaneously instructed offerors to submit the pricing spreadsheet from the original solicitation (which included numerous columns for offerors to provide information beyond hourly labor rates). CFC held the solicitation, as amended, contained an ambiguity—but it was a patent (and not latent) ambiguity. Although CFC agreed with Eagle Hill that the solicitation was ambiguous regarding FEMA’s price evaluation, CFC dismissed Eagle Hill’s challenge because Eagle Hill failed to raise the ambiguity prior to proposal submission. 

POV: Ambiguities that are apparent on the face of a solicitation, including amendments, must be raised before proposal submission. Offerors must diligently review the solicitation and any amendments to determine if there are inconsistencies, and promptly clarify any inconsistencies with the agency.


bid protests, government contracts