Negotiated acquisitions

Finding the contract language patently ambiguous, the COFC next determined that the Navy had notice of the ambiguity both before the closing date, by way of Offeror A's question about "how the budget items were to be construed," and later, when Offeror A submitted its initial proposal with prices that exceeded two separate budget ceilings. (38) Looking to Federal Acquisition Regulation (FAR) section 14.208(c) (39) for guidance, the court concluded that while the Navy "clearly and distinctly" instructed Offeror A of its interpretation of the ambiguous provision during the first round of discussions, it did not dot same for the other bidders." (40)

The court also concluded that the Navy treated offerors unfairly when, after the receipt of the initial proposals, it specifically informed Offeror A not to exceed the budget ceilings, but simply eliminated Metcalf from further consideration when its final proposal included a price above the budget ceiling. (41) Dismissing the Navy's claim that the contracting officer reasonably concluded that yet another round of discussions was unnecessary, the court stated that "one more clarifying statement would have only enhanced the quality of the procurement process, and served the interest of (1) fairness, when another bidder had received a prior warning, and (2) competition, when there were only a total of three bidders under consideration." (42) The COFC, concluding that the Navy unreasonably excluded Metcalf's proposal from further consideration, stated that while Offeror A "received only a hospitable warning when it exceeded two of the budget ceilings, ... Metcalf was held to the strict letter of the [Navy's interpretation of the] solicitation." (43)

While It May Be an E-Mail, It's Still "Informal Advice"

While oral advice that conflicts with an agency solicitation does not bind the government, (44) until this past year, neither the GAO nor the COFC had determined whether government E-mail advice binds an agency. In Diamond Aircraft Industries, Inc. (Diamond Aircraft), (45) the GAO determined that even if the agency E-mails the informal advice, the result is the same--an offeror relies upon such agency advice at its own risk, and it does not bind the government. In Diamond Aircraft, the Air Force issued an RFP for motorized gliders, spare parts, and support equipment. In a commercial item acquisition that provided for the selection of the lowest priced technically acceptable proposal, the solicitation stated that the agency would evaluate the motorized gliders on a pass-fail basis, depending upon their ability to satisfy fourteen minimum requirements. (46) In evaluating Diamond Aircraft's proposal, the Air Force determined that the offered motorized glider, powered by a 100-horsepower (hp) engine, failed to meet five of the minimum requirements; the Air Force thus rejected the proposal. (47)

Diamond Aircraft alleged that the Air Force misled it into submitting a technically unacceptable proposal. At the time the Air Force issued the RFP, Diamond Aircraft manufactured a motorized glider with an 81-hp engine, which met all of the solicitation's minimum technical requirements. Diamond Aircraft, however, was in the process of upgrading the glider to add a, 100-hp engine. Because the commercial item solicitation required the glider to meet the specified minimum requirements, and because the 100-hp glider was not certified or in production, Diamond Aircraft E-mailed the Air Force and asked whether it should submit alternative offers. According to Diamond Aircraft, the Air Force's E-mail response "advised that the 100-hp version would be acceptable, and instructed it to submit only one offer, for the 100-hp version." (48)