[A] party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterwards in a § 1491(b) action [Post-award protest] in the Court of Federal Claims.

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007).

If the ambiguity is patent, it triggers a duty to inquire. A patent ambiguity is one that is “obvious, gross, [or] glaring, so that plaintiff contractor had a duty to inquire about it at the start.” H&M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974). If an ambiguity is obvious and a bidder fails to inquire with regard to the provision, his interpretation will fail. Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 19971).

NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1162 (Fed. Cir. 2004).

If the court concludes that ambiguity exists, the court must then determine whether the ambiguity is latent or patent. An ambiguity is latent if it is not apparent on the face of the solicitation and is not discoverable through reasonable or customary care. Under the rule of contra proferentem, a latent ambiguity is resolved against the government as drafter of the solicitation. Contra proferentem, however, is a “rule of last resort.” The rule applies only if there is a genuine ambiguity that remains unresolved after the court examines the entire solicitation and all contemporaneous circumstances.

In contrast to a latent ambiguity, a patent ambiguity in a solicitation is one that is “obvious, gross, [or] glaring.” Such patent ambiguity may take the form of “facially inconsistent provisions” that would “place a reasonable [offeror] on notice” of a conflict or discrepancy…. And the patency of an ambiguity is not determined by an offeror’s actual knowledge, but rather by what a reasonable offeror would have perceived. When a solicitation contains a patent ambiguity, the offeror has “a duty to seek clarification from the government, and its failure to do so precludes acceptance of its interpretation” in a subsequent court action. A patent ambiguity is thus an exception to the general rule of contra proferentem and requires the court to resolve the ambiguity against the offeror, i.e., to adopt the government’s interpretation.

Linc Government Services, LLC v. United States, 96 Fed. Cl. 672 (2010).

Under our Bid Protest Regulations, a solicitation defect apparent on the face of the solicitation must be protested prior to the time set for receipt of initial proposals or quotations, when it is most practicable to take effective action against such defects. 4 C.F.R. § 21.2(a)(1) (2013). Furthermore, an offeror who chooses to compete under a patently ambiguous solicitation does so at its own peril, and cannot later complain when the agency proceeds in a way inconsistent with one of the possible interpretations.

IBM-U.S. Federal, B-407073.3 et al., June 6, 2013.

Where a solicitation contains a patent ambiguity, an offeror has an affirmative obligation to seek clarification prior to the first due date for responding to the solicitation following introduction of the ambiguity into the solicitation. 4 C.F.R. § 21.2(a)(1). Where a patent ambiguity is not challenged prior to submission of solicitation responses, we will dismiss as untimely any subsequent protest assertion that is based on one of the alternative interpretations as the only permissible interpretation. Here, since any ambiguity was apparent from the face of the RFQ, the protesters may not now assert that the only permissible interpretation of this requirement is their own.

Government Acquisitions, Inc., B-407877.2, B-407877.3, B-407877.4, March 25, 2013.

Where a dispute exists as to the actual meaning of a particular solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all its provisions; to be reasonable, an interpretation of a solicitation must be consistent with such a reading.

ArmorWorks Enterprises LLC, B-405450, Oct. 28, 2011.

Generally, a contracting agency must provide offerors with sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. A solicitation ambiguity exists where two or more reasonable interpretations of the terms of the solicitation are possible.

CWTSato Travel, B-404479.2, April 22, 2011.

Where, as here, an RFP provision is unambiguous, an offeror may not rely on oral advice from agency officials that is contrary to the clear terms of the RFP.

B&S Transport, Inc., B-402695, July 9, 2010.

….Because we believe that both the agency’s and protester’s interpretations of the RFP are reasonable, this indicates an ambiguity in the RFP with respect to information that the agency would consider in performing its past performance evaluation. An ambiguity exists where two or more reasonable interpretations of the terms or specifications are possible. A party’s particular interpretation need not be the most reasonable to support a finding of ambiguity; rather, a party need only show that its reading of the solicitation provisions is reasonable and susceptible of the understanding it reached.

With that in mind, we must determine whether the ambiguity is latent or patent since, if patent, it would have had to be protested prior to the closing date for the submission of proposals in order to be considered timely. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error (e.g., where the solicitation provisions appear inconsistent on their face), while a latent ambiguity is more subtle. Since [the protester’s] interpretation of the RFP did not directly conflict with any of the other solicitation provisions, and the ambiguity came to light in the context of the agency’s past performance evaluation, we conclude that the ambiguity here was latent rather than patent. [The] protest is thus timely.

Singleton Enterprises, B-298576, Oct. 30, 2006.

Assuming then that both the agency’s and the protester’s interpretations of the provision are reasonable, this indicates an ambiguity in the RFP with respect to the price evaluation of the indefinite-quantity items. Accordingly, we must determine whether the ambiguity is latent or patent since, if patent, it would have had to be protested prior to proposal submission date. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, (e.g., where the solicitation provisions appear inconsistent on their face), while a latent ambiguity is more subtle. Since [the protester’s] interpretation of the solicitation provision did not directly conflict with any of the other solicitation provisions and the ambiguity only came to light in the context of the agency’s price evaluation, we conclude that the ambiguity was latent rather than patent and [the] protest of this issue thus is timely.

…

Under these circumstances, the appropriate course of action is to clarify the RFP and afford offerors an opportunity to submit proposals based on the clarified solicitation.

Ashe Facility Services, Inc., B-292218.3, B-292218.4, March 31, 2004.

Contracting agencies have broad discretion in identifying their needs and determining what characteristics will satisfy those needs. The fact that specifications are based upon a particular product is not improper in and of itself; nor will an assertion that a specification was “written around” design features of a particular product provide a valid basis for protest if the record establishes that the specification is reasonably related to the agency’s minimum needs. When a protester challenges a salient characteristic included in a brand name or equal solicitation as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the contracting agency’s minimum needs.

Persistent and Determinant Technologies, LLC, B-408342, Aug. 22, 2013.

In reviewing protests of agency evaluations, we review the record to ensure that the evaluation and source selection decision were reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. If the firm fails to do so, its product is properly rejected as nonconforming.

Nas/Corp-Telmah, Inc., B-405893, Jan. 10, 2012.

Federal Acquisition Regulation (FAR) § 11.104 allows the use of brand name or equal purchase descriptions in describing agency needs in a solicitation, including those conducted under FAR Parts 12 and 13, but requires:

(b) Brand name or equal purchase descriptions must include, in addition to the brand name, a general description of those salient physical, functional, or performance characteristics of the brand name item that an ‘equal’ item must meet to be acceptable for award. Use brand name or equal descriptions when the salient characteristics are firm requirements.

FAR § 11.104(b). Thus, this brand name or equal solicitation was defective because it did not identify salient characteristics, so that bidders offering equal products were left to guess at the desired essential qualities of the brand-name item. We have recognized that where, as here, an agency does not include a list of salient characteristics in a brand name or equal solicitation, the agency is precluded from rejecting a bid offering an equal product for noncompliance with some performance or design feature, unless the offered item is significantly different from the brand-name product.

…

While our Office affords particular deference to the technical expertise of agency personnel where their technical judgments involve matters of human life and safety, the record before us does not withstand scrutiny. In short, in its written materials and in testimony presented at the hearing, the [procuring agency] has not shown that [the protester’s] proposed [ ] electrosurgical unit was significantly different from the brand name [ ] unit.

Veterans Healthcare Supply Solutions, Inc., B-407223.2, Dec. 13, 2012.

When a solicitation contains a brand name or equal purchase description, the FAR requires that it include “a general description of those salient physical, functional, or performance characteristics of the brand name item that an ‘equal’ item must meet to be acceptable for award.” FAR § 11.104(b). The particular features of a brand name item set forth in a solicitation are presumed to be material and essential to the government’s needs. With respect to a firm offering an equal product, the quotation must demonstrate that the product conforms to the salient characteristics listed in the solicitation. If the quotation fails to do so, it is properly rejected as technically unacceptable.

Sourcelinq, LLC, B-405907.2, Jan. 27, 2012.

We have previously found that an agency should waive a minor deviation from a brand name or equal solicitation’s salient characteristics where the deviation does not affect the ability of the nonconforming product to meet the agency’s actual functional needs, and no other firm is prejudiced by the waiver.

OnSite Sterilization, LLC, B-405395, Oct. 25, 2011.

CICA expressly requires agencies to specify their needs and develop specifications in a manner designed to achieve full and open competition. 10 U.S.C. § 2305(a)(1)(A) (2006). To that end, solicitations are required to include specifications that permit full and open competition, and may include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. § 2305(a)(1)(B). Agencies are further instructed that they may use specifications stated in terms of function (so that a variety of products or services may qualify), performance characteristics or design requirements, depending on the nature of the requirements. 10 U.S.C. § 2305(a)(1)(C).

These basic requirements are echoed in FAR part 11, under which, to the maximum extent practicable, agencies must articulate their requirements in terms of functions to be performed, performance characteristics required, or essential physical characteristics. FAR § 11.002(a)(2). While the use of performance specifications is preferred, FAR §§ 11.101, 11.104, the FAR also permits agencies in appropriate circumstances to use “brand name or equal” purchase descriptions, where the purchase description includes a statement of the salient physical, functional or performance characteristics that are necessary to render an “equal” product eligible for award. FAR § 11.104. Agencies are precluded from specifying their requirements solely in terms of a particular firm’s product unless the particular brand name, product or feature is essential to the government’s needs, and market research shows that other companies’ similar products lacking the particular feature do not meet the agency’s needs, or cannot be modified to meet the agency’s needs. FAR § 11.105. Further, when procuring on a brand name only basis, agencies are required to follow documentation and approval procedures for acquiring goods or services using other than full and open competition. FAR § 11.105.

Here, the RFP required prospective offerors for the ID/IQ contract to submit proposals exclusively for the exact brand name items specified in the core list, with no provision for offering alternate, “equal,” products. Although the solicitation thus amounts to a brand name only procurement, the agency has not prepared and executed the required justification and approval (J&A) for use of other than full and open competition. 10 U.S.C. §§ 2304(c), (f); FAR § 11.105. The agency’s actions therefore are improper.

California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters, B-403397.3, March 21, 2011.

It is well-settled that it is the vendor’s responsibility to include sufficiently detailed information in its proposal (or quotation) to establish that the item offered will meet the solicitation requirements, and that blanket statements or certifications of full compliance are insufficient. With respect to a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. The contracting agency is responsible for evaluating the data submitted by the vendor and ascertaining if it provides sufficient information to determine if the vendor’s product is acceptable. We will review an agency’s determination in this regard to ensure that it was reasonable.

Medfinity, LLC, B-403366.2, Oct. 28, 2010.

When the agency lacks sufficient information to provide the offerors with realistic estimated quantities, it is not unreasonable for the agency to base the solicitation upon the best available information… and rely on the professional expertise and business judgment of the bidders to fill in the missing information for themselves.

Glenn Defense Marine (Asia), PTE, Ltd., v. United States, 97 Fed. Cl. 568 (2011).

Generally, a contracting agency must provide offerors with sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. There is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror; to the contrary, an agency may provide for a competition that imposes maximum risks on the contractor and minimum burdens on the agency, provided the solicitation contains sufficient information for offerors to compete intelligently and on equal terms.

Qwest Government Services, Inc., B-407835, March 7, 2013.

In assessing a protester’s claim that a solicitation is inadequate, our Office will review the solicitation to determine whether it provides sufficient information for offerors to compete intelligently and on a relatively equal basis. The same principles apply with respect to a solicitation for commercial items or services. Thus, a solicitation for commercial services generally should describe the type of service and explain how the agency intends to use it “in terms of function to be performed, performance requirements, or essential physical characteristics.” There is no legal requirement that a solicitation be drafted so as to eliminate all performance uncertainties.

Harmonia Holdings, LLC, B-407186.2, March 5, 2013.

As a general rule, agencies must provide sufficient detail in a solicitation to enable offerors to compete intelligently and on a relatively equal basis. When an agency solicits offers for a requirements contract on the basis of estimated quantities, the agency must base its estimates on the best information available.

…

…the mere presence of risk in a solicitation does not make the solicitation inappropriate or improper. It is within the discretion of an agency to offer for competition a proposed contract that imposes maximum risks on the contractor and minimum burdens on the agency, and an offeror should account for this in formulating its proposal. There is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror. Risk is inherent in most types of contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs.

Katmai Information Technologies, LLC, B-406885, Sept. 20, 2012.

Agencies are required to consider cost or price to the government in evaluating competitive proposals. 41 U.S.C. § 3306(c)(1)(B) (2011). While it is up to the agency to decide upon some appropriate, reasonable method for proposal evaluation, the method chosen must include some reasonable basis for evaluating or comparing the relative costs of proposals, so as to establish whether one offeror’s proposal would be more or less costly than another’s. Where estimates are not reasonably available, an agency may establish a notional estimate, consistent with the RFP requirements, to provide a common basis for comparing the relative costs of the proposals…. Here, we agree with [the protester] that the solicitation fails to provide sufficient information to allow a common basis for evaluating offerors’ proposed prices.

…

….Although the solicitation requests unit pricing from the offerors, the RFP does not identify what each unit reflects or against what quantity the proposed unit prices would be applied to determine an evaluated price for each offeror. Absent such information (which, as noted above, may be notional in the absence of better estimates), the agency has no meaningful way to evaluate the offerors’ prices to determine their relative standing.

…

It is a fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria.

DNO Inc., B-406256, B-406256.2, March 22, 2012.

The FSS program, directed and managed by the General Services Administration, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. Federal Acquisition Regulation (FAR) § 8.402(a). In preparing specifications for commercial item procurements, contracting officers are encouraged to “describe the type of product… and explain how the agency intends to use the product… in terms of function to be performed, performance requirement or essential physical characteristics.” FAR § 12.202(b). A key element of efforts to increase purchases of commercial products is stating requirements in broad functional or performance terms, rather than using detailed military specifications. While we will consider a protest that a solicitation lacks sufficient detail for vendors to compete intelligently, and on a common basis, for an order, the level of detail needed in a commercial item specification is a matter left largely to the judgment of agency contracting officials.

Quantico Army & Tactical Supply, Inc., B-400391, Sept. 19, 2008.

Where a dispute exists as to the actual meaning of a solicitation requirement, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions.

AMS Group, B-299369, April 12, 2007.

A solicitation must contain sufficient information to allow offerors to compete intelligently and on an equal basis. Offerors can compete on equal terms only if they know in advance the basis on which their proposals will be evaluated.

Oregon Potato Company, B-294839, Dec. 27, 2004.

Relevantly, FAR 6.101(b) requires that contracting officers use competitive procedures “that are best suited to the circumstances of the contract action and consistent with the need to fulfill the Government’s requirements efficiently.” 48 C.F.R. § 6.101(b) (2009). Restrictive provisions are permissible, but only “to the extent necessary to satisfy the needs of the agency or as authorized by law.” Id. § 11.002(a)(1)(ii) (2009). Moreover, “[t]he determination of an agency’s minimum needs ‘is a matter within the broad discretion of agency officials… and is not for this court to second guess.’” Nonetheless, where there is no rational basis for an agency’s decision, or there was a violation of an applicable regulation or procedure, the court may find such decision to be arbitrary and capricious. Accordingly, the protestor must demonstrate that there was no rational basis for the agency’s decision.

Savantage Financial Services, Inc. v. United States, 86 Fed. Cl. 700 (2009).

We have recognized that an agency may use detailed specifications where the record demonstrates that particular size, strength, or material requirements are necessary to ensure adequate performance, or that a particular design is reasonably related to maintaining an aesthetic appearance. Specifications for the use of particular materials may be justified when they are necessary to ensure adequate performance or that a particular design is reasonably related to the agency’s aesthetic needs. Such consideration of aesthetics and suitability is a subjective exercise. For example, agencies may use specifications requiring a particular color where the agency reasonably establishes that the color restriction is necessary to match an established color scheme. Similarly, uniformity of appearance can lead to a specification which assures consistency with the agency’s previous acquisitions.

J. Squared Inc., d/b/a University Loft Company, B-408388, Aug. 27, 2013.

In preparing a solicitation for supplies or services, a contracting agency must specify its needs and solicit offers in a manner designed to obtain full and open competition and may include restrictive provisions or conditions only to the extent that they are necessary to satisfy the agency’s needs. 10 U.S.C. § 2305(a)(1) (2006). A contracting agency has the discretion to determine its needs and the best method to accommodate them. Where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Mere disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable.

Womack Machine Supply Co., B-407990, May 3, 2013.

Where a protester challenges a specification or requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification or requirement is reasonably necessary to meet the agency’s needs. We will examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. A protester’s mere disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable.

ASC Group, Inc., B-407136, Nov. 15, 2012.

In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition and may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. 10 U.S.C. § 2305(a)(1) (2006). To the extent a protester challenges a specification as “unduly restrictive,” that is, challenges both the restrictive nature of the requirement as well as the agency’s need for the restriction, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. If the agency establishes support for the challenged solicitation term, the burden shifts to the protester to show that it is clearly unreasonable.

Technosource Information Systems, LLC, B-405296, B-405296.2, B-405296.3, Oct. 17, 2011.

The fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency’s needs.

Helionix Systems, Inc., B-404905.2, May 26, 2011.

The fact that an aspect of the RFP’s evaluation criteria may prevent a number of small firms from obtaining positive past performance ratings is not dispositive of whether the provision is unduly restrictive. Rather, agencies enjoy broad discretion in the selection of evaluation criteria, and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency’s needs in choosing a contractor that will best serve the government’s interests.

SML Innovations, B-402667.2, Oct. 28, 2010.

This Office has considered geographic restrictions reasonably necessary for an agency to meet its needs when, for example, the agency demonstrates that convenience and efficiency of operations require that a facility be located within a particular boundary.

Eisenhower Real Estate Holdings, LLC, B-402807, July 27, 2010.

Further, when a contractor will be operating in a unique work setting, an agency may require that the contractor’s personnel possess prior experience in operating in the same type of work setting.

JRS Management, B-402650.2, June 25, 2010.

Regarding amendments, FAR § 15.206(a) states that “[w]hen, either before or after the receipt of proposals, the government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation.” Numerous cases indicate that this provision may—indeed, must—be invoked where “after a solicitation is issued, [the agency] determines that a noncompliant proposal represents the best value to the Government.” Beta Analytics, 44 Fed. Cl. at 139; see also MVM Inc. v. United States, 46 Fed. Cl. 126, 131-32 (2000); Candle Corp. v. United States, 40 Fed. Cl. 658, 663 (1998). Amendments under this provision may also be appropriate “to avoid award decisions not based on the agency’s most current view of its needs.” Indeed, most cases in which agencies have run afoul of this FAR provision involve situations in which evaluation requirements were changed without the requisite formal amendment.

EP Prods., Inc. v. United States, 63 Fed. Cl. 220 (2005).

Where an agency’s requirements materially change after a solicitation has been issued, it must issue an amendment to notify offerors of the changed requirements and afford them an opportunity to respond. Federal Acquisition Regulation (FAR) § 15.206(a). Amending the solicitation provides offerors an opportunity to submit revised proposals on a common basis that reflects the agency’s actual needs. Where an agency’s estimates for the amount of work to be ordered under an ID/IQ contract changes significantly, prior to award, the agency must amend the solicitation and provide offerors an opportunity to submit revised proposals.

Global Compute Enterprises, Inc., Savantage Financial Services, Inc., B-404597, B-404597.2, B-404597.3, March 9, 2011.

Generally, where an agency’s requirements change after a solicitation has been issued, it must issue an amendment to notify offerors of the changed requirements and afford them an opportunity to respond. FAR § 15.206(a). The object of the requirement is to avoid award decisions not based on the agency’s most current view of its minimum needs. One circumstance requiring the issuance of an amendment is a significant change in the government’s estimate of the quantity it expects to order.

Murray-Benjamin Electric Company, L.P., B-400255, Aug. 7, 2008.