As we have previously covered on this blog, challenges to the terms of a solicitation typically must be raised in a bid protest brought prior to proposal submission.  The Government Accountability Office recently sustained such a pre-award protest in Selex ES, Inc., B-420799 (Sept. 6, 2022)

In Selex, the agency was seeking to procure a tactical air navigation system which would need to pass a flight check and meet certain readiness levels.  Selex — a prospective offeror — filed a protest raising concerns about when the flight check and readiness level requirements would need to be satisfied. 

GAO found that the solicitation was ambiguous as to this issue and therefore should be amended.  Some terms in the solicitation suggested the flight check and readiness level requirements needed to be met at the time of the proposal submission, while other terms suggested they could be met sometime after award.  GAO explained that, given the conflicting language, “it is impossible for offerors . . . to know whether the . . . requirements are due at [the] time of proposal submission or after award.” 

GAO further found that, because the agency “was required to provide offerors with sufficient detail in the solicitation to enable them to compete intelligently and on a relatively equal basis[,]” Selex was prejudiced by “the solicitation’s failure to clearly state when the agency required the  . . . terms to be completed.”

While Selex had argued that the solicitation’s terms were “unduly restrictive of competition because” they could “be read as requiring offerors to submit successful flight check and . . . readiness level attestations at the time of proposal submission,” GAO declined to pass upon that allegation “until the solicitation is amended to unambiguously reflect when the requirements at issue are due[.]”

The Selex decision is a good reminder that pre-award protests can be a useful tool when a solicitation is confusing, unfair, or unduly burdensome.  

Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the…

Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.

Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.

Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.

Photo of Andrew Guy Andrew Guy

Andrew Guy is an associate in the firm’s Washington, DC office. He is a member of the Government Contracts practice group.