RFP Requirements Can Restrict Competition as Long as They Are Reasonable
September 16, 2014
By: Eric Whytsell
Contractors often want to argue – sometimes with good reason – that restrictive RFP requirements are unwise and ill-conceived and should be modified so that competition is not unduly constrained. The recent decision in AAR Airlift Group, Inc., B-409770 (July 29, 2014) serves as a reminder, however, that no matter how righteous a contractor believes its challenge to RFP requirements to be, the agency’s chosen requirements will stand so long as they are reasonably related to the agency’s needs.
AAR Airlift involved a United States Transportation Command solicitation for airlift services supporting the Combined Joint Special Operations Task Force with flights between locations in Afghanistan, Kyrgyzstan, Pakistan and Uzbekistan. The solicitation initially included a revised performance work statement (PWS) requiring, among other things, that the aircraft proposed be capable of dropping 6 to 8 bundles of a specified size and weight “each mission or flight operation scheduled.” After the submission of initial proposals, the agency revised the PWS to instead require the ability to transport those 6 to 8 bundles on “each flight.”
AAR Airlift Group did not have any aircraft that met either requirement. It originally proposed to use the a plane that would make two trips to drop the requisite number of bundles. In response to the revised PWS, the company switched from a two-trip to a two-plane solution in which two of its smaller planes would simultaneously transport and drop a portion of the overall required payload.
When the agency made clear in Q&A that “[t]he requirement is for only 1 aircraft,” the company protested, arguing that the revised aircraft lift capability requirement “is unduly restrictive of competition and has ‘no rational relation to the air-drop resupply services’ being procured.” According to AAR Airlift, it is irrelevant whether “the bundles are delivered in one flight, two flights, or simultaneously by two aircraft.” The protester also claimed that the incumbent contractor was the only bidder with aircraft meeting the agency’s requirements.
The Government Accountability Office (GAO) began its analysis by invoking the well-established principle that a contracting agency has the discretion to determine its needs and the best method of accommodating them and that the agency’s chosen solicitation requirements will stand so long as the agency can show they are “reasonably necessary to meet its needs.” Significantly, the GAO noted that the standard is even higher in the areas of national defense and human safety, where the agency has the discretion to define solicitation requirements to achieve the highest possible reliability and/or effectiveness.
Here, the GAO concluded that the record supported the reasonableness of the agency’s requirement that a single aircraft be capable of delivering all 6 to 8 bundles of supplies on each flight. That record demonstrated that the requirement in question had been validated several times during the procurement and again after the protest was filed. In doing so, the agency determined that the single-aircraft, single-flight requirement is the best method of delivering supplies, improves U.S. Military safety and force protection, and “reduces the likelihood of personnel injury or death and possible loss of aircraft” when compared to the use of multiple aircraft or multiple flights.
GAO held that “Given the critical need to ensure the safety of military and contractor personnel, including both those on board the aircraft and those who will be in close proximity to the supply drop zones, we find that the agency’s interest in requiring a one-aircraft, one-flight solution is reasonable to achieve the highest level of reliability and effectiveness.”
In other words, the heightened standard was simply too much for AAR Airlift to overcome. Even if the case had not involved national defense and troop safety, however, the protest would have been difficult to win due to the significant deference GAO affords contracting agencies’ choice of solicitation requirements. The only way to win such cases is to show that the agency’s decision cannot withstand logical scrutiny. Contractors should keep this in mind when deciding whether to protest what seem to be unduly restrictive solicitation requirements. Otherwise, they might end up wasting time and money on what essentially amounts to an unwinnable disagreement over an agencies wrong-headed but reasonable choices.
Eric Whytsell is responsible for the contents of this article.
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