Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Superior Gunite 

File: B-402392.2 

Date: March 29, 2010 

Leonard R. Ruzicka, Jr., Esq., Stinson Morrison Hecker, for the protester. 

Gary M. Smith, Esq., Lewis Rice Fingersh, for SAK Construction LLC, the intervenor. 

Parag J. Rawal, Esq., and Jeffrey E. Asbed, Esq., Department of the Army, Corps of 

Engineers, for the agency. 

Tania Calhoun, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest of the agency’s rejection of the protester’s proposal as technically 

unacceptable is denied, where the protester failed to submit a complete technical 

proposal. 

DECISION 

Superior Gunite, of Lakeview Terrace, California, protests the rejection of its 

proposal and the award of a contract to SAK Construction LLC, of O’Fallon, 

Missouri, under request for proposals (RFP) No. W912P9-10-R-0702, issued by the 

U.S. Army Corps of Engineers for the rehabilitation of sewers in the Metropolitan 

Sewer District (MSD), St. Louis, Missouri. 

We deny the protest. 

The solicitation, issued as a small business set-aside, contemplated the award of a 

fixed-price contract to the firm submitting the lowest priced, technically acceptable 

proposal. RFP § 00100, at 14. Offerors were informed that, for a proposal to be 

found technically acceptable, an offeror must not be on the debarred bidders list and 

the proposal must receive a satisfactory or higher rating. Id. 

The RFP further advised that the agency intended to award a contract without 

conducting discussions, but reserved the right to conduct discussions if it was 

deemed to be in the government’s best interests. Id. Consistent with this 

instruction, the RFP set out Federal Acquisition Regulation (FAR) clause 52.215-1, 

“Instructions to Offerors--Competitive Acquisition.” Id. at 2-5. In relevant part, this 
clause states that the government intends to evaluate proposals and award a 

contract without discussions and that, therefore, the “initial proposal should contain 

the offeror’s best terms from a cost or price and technical standpoint.” However, the 

RFP also set out Alternate 1 to FAR clause FAR § 52.215-1, which states, in relevant 

part, that the government intends to conduct discussions with offerors whose 

proposals have been determined to be within the competitive range, but that the 

“initial proposal should contain the offeror’s best terms from a price and technical 

standpoint.” Id. at 5-8. 

Instructions for the preparation of proposals were provided, which informed 

offerors that “[p]roposals must be complete, self-sufficient, and respond directly to 

the requirements of this solicitation. The offerors shall include both a price 

proposal, and a copy of the MSD certification.” Id. at 14. With respect to offerors’ 

technical proposals, the RFP’s proposal preparation instructions identified six 

technical evaluation factors: past experience, past performance, in-house technical 

capability, mobilization and on-site management plan, safety programs, and quality 

control evaluation. For each factor, the RFP provided a detailed description of the 

information an offeror was required to submit as well as minimum requirements that 

must be met in order to be technically acceptable, and stated that the government 

would evaluate the information submitted to determine if it was technically 

acceptable. Id. at 15-17. 

The Corps received four proposals, including Superior’s and SAK’s, which the agency 

evaluated for technical acceptability. Superior’s proposal was found to be 

technically unacceptable because the protester failed to provide information 

addressing many of the minimum requirements identified for each technical 

evaluation factor. See Agency Report (AR), Tab 7, Consensus Evaluation and Source 

Selection Document, at 14-17. The agency found that Superior had not 

(1) demonstrated relevant past experience, (2) provided information establishing its 

in-house technical capability, (3) provided an adequate mobilization and on-site 

management plan, (4) discussed its safety program, or (5) provided information 

about its quality control plan or staff. Id. Discussions were not conducted, and 

award was made to SAK on the basis of its initial proposal. 

The Corps notified Superior that its proposal was rejected as technically 

unacceptable, because the firm’s proposal did not demonstrate a clear understanding 

of the solicitation’s requirements given that information requested for four of the six 

technical evaluation factors was not provided. AR, Tab 8, Notice of Unsuccessful 

Offer. Superior filed an agency-level protest and, before the Corps could respond, 

filed the instant protest with our Office. 

Superior argues that the agency unreasonably found that Superior’s proposal was 

technically unacceptable because the RFP did not require offerors to submit a 

technical proposal as part of their initial proposal submissions. Specifically, 

Superior contends that it reasonably interpreted the solicitation as requiring only 

Page 2 B-402392.2 
that it submit a price proposal and have a current certification with the MSD and that 

it would have an opportunity during discussions to demonstrate its technical 

acceptability. In this regard, Superior relies on the RFP’s instructions that “[t]he 

offer shall include both a price proposal, and a copy of the MSD certification,” and 

on the solicitations inclusion of Alternate 1 of FAR clause 52.215-1, which indicated 

that the agency intended to conduct discussions. 

In reviewing protests of alleged improper evaluations, our Office examines the 

record to determine whether the agency’s judgment was reasonable and in accord 

with the stated evaluation criteria and applicable procurement laws. See Abt 

Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4. Solicitation provisions 

must be sufficiently definite and free from ambiguity so as to permit competition on 

a common basis. Alpha Marine Servs., LLC, B-291721, B-291721.3, Mar. 5, 2003, 2003 

CPD ¶ 71 at 4. When a dispute arises as to the actual meaning of solicitation 

language, our Office will resolve the matter by reading the solicitation as a whole 

and in a manner that gives effect to all provisions of the solicitation. A solicitation is 

not ambiguous unless it is susceptible to two or more reasonable interpretations. Id. 

Here, we find that, although the solicitation is poorly drafted, the only reasonable 

interpretation of the solicitation is the one advocated by the agency--that is, that 

offerors were required to submit technical proposals as part of their initial proposal 

submissions. As noted above, the solicitation stated that award would be made to 

the offeror submitting the lowest priced, technically acceptable proposal. Offerors 

were informed that “[p]roposals must be complete, self-sufficient, and respond 

directly to the requirements of this solicitation.” RFP § 00100, at 14. The proposal 

preparation instructions identified technical evaluation factors and described the 

information offerors were required to submit, as well as minimum requirements that 

must be met, to be technically acceptable. In this regard, the RFP provided that the 

agency would “evaluate the information submitted to determine if it is technically 

acceptable and meets the minimal requirements for this factor. To be rated as 

acceptable, all of the minimum . . . requirements must be met by the proposal.” Id.

at 15-17. Reading the solicitation as argued by Superior ignores the instructions 

concerning the submission of information required for the technical evaluation and 

the admonition that proposals must be complete and respond directly to the 

requirements of the solicitation. 

Although the solicitation included both FAR clause 52.215-1, and Alternate 1 to that 

clause,1

 this patent ambiguity did not relieve Superior of the responsibility for filing a 

 

1

 The inclusion of both clauses creates a patent ambiguity, which Superior was 

required to protest prior to the closing time for receipt of proposals. See 4 C.F.R. 

§ 21.2(a)(1) (2009). 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 

(continued...) 

Page 3 B-402392.2 
complete proposal. In this regard, both clauses informed offerors that their initial 

proposals should contain their best terms from a price and technical standpoint. 

In sum, reading the solicitation as a whole and giving meaning to all of its provisions, 

the only reasonable interpretation is that initial proposal submissions were required 

to include information responsive to the requirements set forth for the technical 

evaluation factors. Superior’s proposal did not provide the technical information 

requested by the RFP, and therefore the agency reasonably found that Superior’s 

proposal was technically unacceptable. 

Alternatively, Superior argues, citing the decision of the U.S. Court of Federal Claims 

in Griffy’s Landscape Maintenance LLC, 46 Fed. Cl. 257, 259 (2000), that its failure to 

provide a complete technical proposal was a clerical error and that the Corps could 

have asked the firm to provide the information after submission of initial proposals. 

The Griffy’s Landscape decision is inapposite to the situation presented here. The 

court in Griffy’s Landscape found the plaintiff’s failure to provide contact 

information for its insurance carrier was an immaterial omission and a clerical 

mistake, which the agency should have clarified. Id. at 258-59. Here, on the other 

hand, Superior failed to provide a technical proposal addressing the RFP criteria, 

under which technical acceptability would be determined. This failure could not be 

the subject of clarifications. FAR § 15.306(a)(2) provides that, where as here 

discussions are not to be conducted, an agency may provide an offeror with the 

opportunity to resolve minor or clerical errors. Clarifications may not be used, 

however, to cure proposal deficiencies or material omissions, materially alter the 

technical or cost elements of the proposal, or revise the proposal. eMind, B-289902, 

May 8, 2002, 2002 CPD ¶ 82 at 5. 

Superior also argues that the Corps could have reviewed the records of the St. Louis 

MSD, which it alleges would have provided some of the information requested by the 

RFP to establish technical acceptability. See Comments at 2-3. This argument is 

without merit. It is not a contracting agency’s responsibility to search for 

information to establish the technical acceptability of an offeror’s proposal. Rather, 

it is the offeror’s responsibility to submit a well-written proposal, with adequately 

detailed information which clearly demonstrates compliance with the solicitation 

and allows a meaningful review by the procuring agency. CACI Techs., Inc., 

B-296946, Oct. 27, 2005, 2005 CPD ¶ 198 at 5. In this regard, an offeror must 

affirmatively demonstrate the merits of its proposal and risks the rejection of its 

 

(...continued) 

solicitation. Smart Innovative Solutions, B-400323.3, Nov. 19, 2008, 2008 CPD ¶ 220 

at 5. 

Page 4 B-402392.2 
Page 5 B-402392.2 

proposal if it fails to do so. See HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 

2005 CPD ¶ 8 at 5. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel