Government Contracts Monitor
Sometimes the Agency Must Consider the “Best” Tool Even If It Doesn’t Meet the Solicitation Requirements
November 9, 2017
Contractors sometimes read solicitations and think, “I’ve got just the thing for this contract”, without paying sufficient attention to what the government purchaser actually wants to buy. Usually, that failure is fatal to the contractor’s chances of winning an award. As the recent Government Accountability Office (GAO) decision in Global SuperTanker Services, LLC, B-413987; B-414987.2 (November 6, 2017) demonstrates, however, sometimes you can force a procuring agency to consider a solution that does not meet the solicitation requirements.
The protest in question involved a procurement for a “Call When Needed” contract for wildland firefighting on a nationwide basis. Protester, Global SuperTanker Services (“GST”), wanted to bid but was precluded because the solicitation restricted the tank size on the aircraft used to perform the contract. GST planned to use what’s known as a VLAT (Very Large Airtanker)--the “newest and largest firefighting airtanker”--for its firefighting services. The VLAT can carry up to 19,200 gallons of fire retardant.
The subject request for proposals (RFP) required a “minimum . . . volume of 3,000 gallons and . . . a maximum volume of 5,000 gallons.” Under the solicitation, any bidders with an aircraft tank capacity falling outside that range would not be considered. After submitting a pre-proposal request to the agency seeking an explanation for the quantity maximum, GST timely filed a pre-award protest alleging the maximum volume restriction was “unduly restrictive of competition” and “knowingly targeted” GST due to the size of its aircraft.
When a protester “challenges a solicitation as unduly restrictive, the procuring agency has the burden to establish that the specification is reasonably necessary to meet its needs.” Pitney Bowes, Inc. B-413876.2, Feb. 13, 2017 2017 CPD ¶ 56 at 3. Critically important to the GAO’s decision in this matter was the fact that this was a “Call When Needed” contract. Notably, such agreements do not require the agency “to place any orders [or] incur [any] costs for days of inactivity.” Accordingly, the agency has the “ultimate flexibility to tailor its orders on a case-by-case basis, to precisely the aviation assets it requires for each individual fire.” As the GAO noted, “it costs the Forest Service nothing to permit the inclusion of VLATs in the subject procurement, while simultaneously increasing the agency’s available options during fire season.”
With that basic framework in mind, the GAO considered each of the government’s “justifications” for the restriction and determined that none were sufficient. First, the GAO rejected the notion that the solicitation focused solely on “initial attack” operations (which were supposedly not suited to VLATs) and not “extended attack operations.” The GAO pointed out and the government conceded the solicitation made reference to both types of operations. GST and the GAO also picked apart the government’s arguments that studies from 1995, 1996, 2005, and 2012 supported the agency’s position that VLATs were not ideal for initial attack operations. The GAO pointed out that the studies, which were also questionable from a temporal perspective, actually supported GST’s position and did not suggest any limitation on tank size was necessary or appropriate. The GAO also noted issues with the government’s argument about air base limitations in accommodating VLATs and other cost factors the government claimed supported its position. Ultimately, the GAO dispelled of all of the government’s arguments and found that none were factually supported. As such, the GAO sustained the protest.
The takeaway? When considering a bid on a Call When Needed solicitation, you may be able to challenge a restriction that does not seem well supported by government needs. These types of solicitations inherently favor more inclusion, as no one is disadvantaged by an award that lacks any specific order or acceptance requirements. Unless the government has well- founded reasons for including a given restriction, a potential bidder may protest and establish the solicitation was unduly restrictive.
© 2017 Jackson Kelly PLLC