Monday, April 9, 2012


Judge Bush of the Court of Federal Claims (COFC) has just granted another bid protest injunction, this time against the United States Air Forces in Europe. (See our blog at regarding other Judge Bush opinions). A critical provision in the RFP was unclear and rendered legally ambiguous by the contracting officer's answer to a bidder's question.  The case stands for the proposition that although not all answers to bidders' questions amend or modify a solicitation provision, some in fact do, depending on the circumstances of the procurement.  Here, the fact that the agency issued a revised and radically different response to the question on a separate date, when all of its other responses remained the same, gave the revised answer special prominence and therefore functioned as a confusing amendment to an otherwise unclear solicitation requirement.

Defending the protest, the government argued the protester had no standing since its proposal did not conform to the unclear requirement at issue in the protest.  "Defendant thus asks the court to decide the merits of this protest in order to determine whether or not [the protester] has standing to bring this suit."  Nonsense, says the court.  The government cannot require a plaintiff to prove the merits of its case in order to demonstrate standing.  The plaintiff must show that there is a substantial chance it would have received the award but for the alleged error in the procurement process.

The court then recited the contract interpretation rules applicable to the consideration of the meaning of solicitation language.  When a contract is susceptible to more than one reasonable interpretation, it contains an ambiguity.  Different interpretations are not enough.  Both must be within the "zone of reasonableness".  Next, the court determines whether the ambiguity is patent or obvious.  An ambiguity is patent if it is so glaring as to raise a duty to inquire as to its meaning.  If the ambiguity is not patent but latent, the court then enforces the general rule that construes the ambiguity against the drafter, the government.

To determine if a permanent injunction is warranted, the court must consider whether (1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.  Judge Bush finds in favor or the plaintiff on each test and grants a permanent injunction, prohibiting award to the winning contractor and requiring a re-evaluation of proposals consistent with the court's opinion.

So answers to questions may become solicitation amendments and clarifications had better be clear.  Otherwise, the resulting ambiguity may be resolved against the government.

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