By: Lindsay Simmons
Successfully protesting the terms of a solicitation as being unduly restrictive is still possible–this protest ground is alive and well. However, it requires more than just showing that you are not capable of meeting the objectionable requirements. You must establish that the solicitation includes requirements that both limit the field of competition and are not necessary to meet the agency’s needs. If the solicitation’s restrictions are reasonably related to the government’s needs, the protest will likely be denied.
Why? Because the determination of the government’s needs, and the selection of best method of accommodating those needs, is the responsibility of the procuring agency. Presumably contracting officials are the ones most familiar with the conditions under which supplies and services have been used in the past and will be needed and used in the future. For this reason, the Government Accountability Office (GAO) accords significant deference to an agency’s description of its needs.
However, all is not lost to this “deference.” When a protester challenges a specification as unduly restrictive–contesting both the restrictive nature of the requirement as well as the agency’s need for the restriction–the burden shifts to the agency. The procuring agency must establish that its specification is reasonably necessary to meet its needs. Whether or not the agency’s justification is adequate is determined by examining whether the agency’s explanation is reasonable–whether it withstands logical scrutiny.
For example, as previously discussed here, in Pitney Bowes, Inc., B-413876.2 (February 13, 2017), the protester challenged the requirement for a high capacity sheet feeder capable of being loaded on the fly. According to the agency, load-on-the-fly capability was necessary to “minimize production time by allowing the equipment to be loaded while in operation.” According to the protester, however, this requirement was overly restrictive because the same continuous operation could be achieved by using two high capacity sheet feeders. GAO found the agency failed to establish that the load-on-the-fly capability was necessary and sustained the protest. The agency had failed to consider whether alternative approaches (such as the one suggested by the protester) could meet its minimum needs.
More recently, in Navarre Corporation, B-414505.4 (January 4, 2018), the protester alleged that a solicitation amendment provided an unfair competitive advantage, arguing that it was improperly written to conform to a competitor’s previously non-compliant proposal. The amendment gave offerors an opportunity to satisfy a certification requirement prior to the commencement of performance, as opposed to having to demonstrate satisfaction of the certification requirement with submission of proposals.
The GAO found reasonable the agency’s explanation that allowing offerors to demonstrate compliance with certification requirements prior to the start of contract performance would “ensure” a level playing field” by providing all offerors with additional time to have their drivers complete the revised requirements. The agency’s actions also served to enhance competition. GAO will rarely sustain a protest where the specification has the effect of broadening rather than narrowing competition. Indeed, the reverse set of facts may have provided a better ground for protest, that is, if the agency had required certification prior to proposal submission without a reasonable basis for such a restriction.
In short, the GAO will sustain a protest where an agency cannot establish that it actually needs a specific design element, salient feature or certification. Keep your eye out for such requirements when you review a solicitation and remember, this is a protest ground that must be raised prior to the due date for submission of proposals or bids. When you see something you believe is unduly restrictive, ask a clarification question and/or protest. Once proposals are submitted, it is too late to raise this issue.
Lindsay Simmons is responsible for the content of this article.
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