3. DEFECTIVE OR INADEQUATE SPECIFICATIONS 
Overview of This Protest Ground: Protests based on an argument that the agency’s description of its needs in a solicitation (i.e., PWS or SOW) are defective, inadequate, confusing, misleading, etc., are quite common. These protests are typically filed by frustrated offerors that do not believe the government has provided them with enough information to formulate a responsive offer.
It is difficult to draw a clear line as to when the government has met its duty to describe the agency’s minimum requirements adequately. The key points reflected in the case law are as that (1) the government must describe the work at a level of detail that allows offerors to compete intelligently and on a relatively equal basis, (2) this level of detail does not need to be so exact as to remove all risk from the contractor, (3) agencies have the discretion to shift maximum risk to the contractor and minimum burden to the agency, (4) agencies must structure solicitations in a manner that allows the offered cost/price to be meaningfully analyzed in the source selection decision, and (5) when the agency solicits offers based on estimated quantities, the agency must base its estimate on the best information available.
COFC’s Key Language
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).
GAO’s Key Language
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.
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…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.
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….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.
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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.
FAR Crosswalk: FAR Part 11, Describing Agency Needs, and FAR § 12.202(b).
Other Relevant Cases: See page 293 in the Index of Representative Cases.
Commentary: The GAO affords the agency significant discretion in terms of the level of detail the agency decides to include in its PWS or SOW. Accordingly, this is generally not a successful basis of protest in terms of a merits-based decision. However, if an offeror believes that the agency is not responding with accurate or responsive information, a protest in this area can result in the agency’s taking corrective action and providing the missing detail that the frustrated offeror is seeking. In that sense, a protest can be a powerful option of last resort. Contracting offices can avoid some of these protests by providing more meaningful responses to legitimate questions submitted by offerors.
A review of the sustained protests in this area demonstrates that the GAO finds certain agency actions to be unreasonable. These include (1) not providing an explanation of the “unit” that is being requested in a supply contract, (2) refusing to amend a solicitation to reflect its knowledge of a clearly foreseeable increase in future work, (3) failing to disclose an important performance requirement that was not deducible from the PWS, and (4) drafting a PWS in a confusing manner, leading to widely differing prices submitted by competing offerors with different understandings of the government’s requirement.