By: Eric Whytsell
In its bid protest decisions, the Government Accountability Office (GAO) holds disappointed offerors to high standards of proof and routinely penalizes them for failing to raise issues or present proof in a timely manner. In addition to making sure they know the applicable standards and timelines, savvy government contractors also keep in mind an essential truth of the bid protest process: the GAO’s high degree of deference to the Government means that it does not always hold the Government to the same time standards as offerors.
The recent decision in Phoenix Environmental Design, Inc., B-411044 (April 27, 2015) is a case in point. Phoenix involved a protest of a request for quotations (RFQ) limiting competition to a specific brand name lawn pesticide. Shortly after the agency posted a synopsis of the procurement stating the pesticide would be purchased on a brand name or equal basis, the contracting officer executed a justification and approval (J&A) to instead procure the pesticide on a brand name only basis. The J&A explained that “[l]ocal cemetery experience has demonstrated that no other commercially available pesticide formulation approaches the effectiveness of Wisdom-EZ Granular . . . .” The next day, the agency issued an RFQ contemplating a fixed-price contract for 1360 bags of Wisdom-EZ pesticide.
Phoenix timely protested, alleging that the brand name only requirement unduly restricts competition. It argued that the agency should be procuring the pesticide on a brand name or equal basis because Phoenix’s product, Talstar PL, contains the “same composition and active ingredients” as Wisdom-EZ.
In response, two weeks after Phoenix filed its protest, the agency tested Phoenix’s product “in order to determine if [it] was the ‘functional equivalent’ of the brand name product.” Instead of using the actual tractor-towed spreaders with which it planned to apply the pesticide, the agency conducted its tests with walk-behind rotary spreaders because they “adjust[] to smaller granule sizes” than the larger machines. Significantly, the Talstar PL granule size is approximately one-fifth that of Wisdom-EZ. According to the agency, the field test revealed that the Talstar PL granules leaked out of the walk-behind spreader when the second smallest setting was used and failed to provide adequate coverage with a single pass when the smallest setting was used. Based on these results, the agency concluded that the Talstar PL pesticide would have leaked out of the larger machine, causing not only “significant loss of product but [also] localized concentration of the product on the turf beneath.” Also citing Talstar PL’s tendency to clog when there is moisture in the air (due to its small size), the agency explained, “though the active ingredient for the two products is identical in both formula and concentration, cemetery testing of Talstar PL reveals insurmountable application issues that render it ineffective . . . .”
Phoenix challenged the testing on several grounds: first, that the agency provided no proof it actually used Talstar PL in its testing; second, that the test results were “at best suspect” since the testing took place after the protest was filed; and third, that it was improper to test using a walk-behind spreader instead of the actual spreader that would be used to perform the contract. From the GAO’s perspective, however, none of this mattered because Phoenix failed to challenge the agency’s conclusion that Talstar PL was not an equal product.
Thus, GAO rejected Phoenix’s protest, reiterating GAO’s well-known deference to an agency’s assessment of its own needs and how best to fulfill them and explaining that GAO only disputes agency decisions when they are shown to have no reasonable basis. In short, the use of a brand name only procurement “is not improper where the agency establishes that the restriction is necessary to satisfy its needs.”
Perhaps this outcome was simply the result of a protester not making the right arguments. But it’s certainly noteworthy that GAO did not care when the agency’s testing took place – only that the testing was conducted and supported the agency’s brand name determination.
The takeaway? Time is on the Government’s side, not yours. The Government will often be allowed to come up with a post hoc rationale for its actions, as was permitted here. The next time you confront a brand name only procurement that you believe is unduly restrictive, spend less time focusing on the adequacy of the agency’s J&A and more time establishing that your product is indeed equal and any agency position or evidence to the contrary is flawed.
Eric Whytsell is responsible for the content of this Article.
© Jackson Kelly PLLC 2015