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Solicitation Did Not Prohibit Zip Files for Proposal Documents

The government's rejection of a portion of a protester's proposal was arbitrary and capricious, according to the Court of Federal Claims, because the protester reasonably interpreted the solicitation to permit e-mailing of Word, Excel, or PDF documents packaged in zip files. The protester challenged the government's failure to evaluate portions of its proposal to provide trucking services in Afghanistan that the government deemed late. The protester transmitted its proposal eight hours in advance of the deadline using compressed, or zipped, files. After receiving an e-mail stating the government could not accept zip files, the protester reorganized more than 100 files as attachments to batches of e-mails within the government's recommended size limit, but many of these e-mails arrived after the deadline. According to the protester, the solicitation did not prohibit zip files and its entire proposal was timely. The parties disputed whether the solicitation's requirement that e-mailed proposals be submitted in "Microsoft Office 2003 (Word and/or Excel) or PDF format only" precluded offerors from submitting proposals in zipped or compressed files.

Latent Ambiguity

Accepting testimony of both parties' experts to resolve the issue, the court concluded the term "format" could refer to Word, Excel, or PDF files and not a zip utility, or it could be used more broadly to describe a zip file as a zip format. Because the ambiguity arose from the technical interpretation of a single term, it was latent and construed against the government under the rule of contra proferentem. Moreover, the protester's interpretation was reasonable because compressed files maintain their Word, Excel, or PDF character, and it is common commercial practice to use zipped files to reduce the size of large file transfers. The court also found the arbitrariness of the protester's treatment was "heightened" because the government waived all of the solicitation's responsivenss criteria for other offerors while refusing to waive the responsiveness criterion of timeliness for the protester. The court directed the government to evaluate the protester's full proposal and consider it for an award, and it awarded bid and proposal preparation costs incurred to reorganize and retransmit the proposal. ( Guzar Mirbachakot Transportation v. U.S., FedCl, 56 CCF 79,778)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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