Offerors seeking to challenge unreasonable Government actions in connection with a federal government procurement generally find the Government Accountability Office (GAO) to be a valuable forum for review. However, a recent GAO decision reiterates the limits on GAO’s willingness to hear certain issues, specifically that GAO generally will not entertain protests challenging an agency’s refusal to award a sole source contract. This is because GAO views its mandate as being to ensure full and open competition, and sole source awards are fundamentally inconsistent with full and open competition. In Rante Corp., B-411188, decided June 1, 2015, the GAO declined to hear a protest seeking to challenge an agency’s refusal to award the company a sole-source contract.
The protest arose out of an unsolicited proposal submitted to the Department of Treasury, Internal Revenue Service (IRS). IRS evaluated the proposal, but determined that the proposal duplicated the functionality of an existing IRS Blanket Purchase Agreement established some six months prior to receipt of the unsolicited proposal. IRS therefore sent Rante a letter rejecting the unsolicited proposal as not providing an innovative or unique solution. Rante filed a bid protest with the GAO the next day, seeking to challenge the agency’s underlying evaluation and disagreeing with the agency’s determination that the unsolicited proposal was neither innovative nor unique.
GAO declined to review the challenged agency determination, and summarily dismissed the protest, stating that “[g]iven that one of the objectives of our bid protest function is to ensure full and open competition, we consider it inappropriate, generally, to review a protest which would mandate an agency to procure from a particular firm on a sole-source basis.” GAO went on to state that Rante’s protest failed to provide a basis to deviate from this general rule, suggesting that while in some limited circumstances the GAO might be willing to consider such a challenge, no such circumstances were present here.
GAO did, however, comment that the decision to make (or not) a non-competitive award generally rests within the agency’s discretion. GAO further alluded to the heavy burden a protestor seeking a sole source award would have to meet, stating, in a footnote, that the instant protest failed to explain why the agency would be required to award a sole-source contract based on the unsolicited proposal. GAO noted that, while FAR 15.607(a) sets forth the circumstances where an agency is required to reject an unsolicited proposal, “it does not follow that in all other circumstances the agency must accept an unsolicited proposal.”
The bottom line is that a company seeking to challenge an agency’s failure to make a sole source award has a very hard road, and will not likely get GAO’s attention.
Hopewell Darneille is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015