Beware of the Alleged Latent Ambiguity that Turns Out to Be a Protest-Negating Patent Ambiguity

The protester objected to its exclusion, arguing the solicitation had a latent ambiguity. GAO agreed: the solicitation was ambiguous. Unfortunately for the protester, the ambiguity was patent. The protester should’ve raised the issue before the proposal deadline.

Karthik Consulting, LLC, GAO B-421610.2

• Alleged Latent Ambiguity – The RFQ was set aside for 8(a) businesses. The agency excluded the protester, finding it was not an 8(a) business. The protester argued the RFQ contained a latent ambiguity. Specifically, the protester contended, the RFQ indicated vendors only needed to be an 8(a) business when they were awarded the underlying multiple award contract. They did not need to be an 8(a) business for the task order contemplated by the RFQ.
• Patent Ambiguity – GAO agreed the RFQ was ambiguous with respect to 8(a) status. But GAO thought the ambiguity was patent, not latent. The RFQ indicated that 8(a) status was only required for the underlying contract. But it also contained language stating vendors should certify their 8(a) status at the time they submitted their quotations for the RFQ. This was a clear inconsistency. The protester should’ve challenged this ambiguity before the proposal deadline.

The protester is represented by Nicole Pottroff, Shane M. McCall, Stephanie L. Ellis, John L. Holtz, and Gregory P. Weber of Koprince, McCall & Pottroff, LLC. The intervenor, Zen Strategics, is represented by C. Peter Dungan, Adam Bartolanzo, and Lauren S. Fleming of Miles & Stockbridge P.C. The agency is represented by Beth Sturgess and Richard W. Postma of the Department of Homeland Security. GAO attorneys Michael Willems and Evan D. Wesser participated in the decision.

–Case summary by Craig LaChance, Senior Editor

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