At GAO, Challenge of Restrictive Terms of Solicitation Tough Burden to Meet

How does a company go about challenging overly restrictive terms in a solicitation? In order to make such a challenge (and some of them do succeed), it is necessary to show something more than just the fact that a protestor cannot meet the terms of the solicitation.

A recent GAO decision provides a real-world example of how not to challenge a solicitation as overly restrictive of competition and reinforces that this can be a difficult thing to prove at GAO.

In Armstrong Elevator Company, B-415809 (March 28, 2018), Armstrong Elevator Company (Armstrong) protested an RFP from the GSA for elevator and escalator modernization and maintenance.

The Solicitation sought a “contractor to perform a fixed-price design-build contract for a vertical transportation modernization project” for several sites including 16 passenger elevators. In particular, the base contract sought replacement of eight passenger traction elevators and one freight traction elevator, along with specified support functions such as electric and painting. The five option CLINS included tasks such as replacing eight additional passenger traction elevators and one freight traction elevator, modernization of elevators, and maintenance and call-back contract services.

For past performance, the solicitation “required offerors to demonstrate successful experience as a contractor responsible for design and construction of three ‘similarly complex’ elevator projects that were substantially completed in the last five years.” A “similarly complex” project was defined as meeting all of the five requirements:

  • The project included 10 or more traction elevators;
  • The project included a follow-on maintenance and call-back contract services of at least three years;
  • The project included fire recall replacement, electrical service revisions/upgrades, and emergency power interface, all in support of elevators;
  • The total elevator project construction cost at award was at least $4 million; and
  • The project was performed in an occupied and functioning building.

Armstrong challenged the requirements for similar past performance projects as overly restrictive, noting it could meet all five requirements, but not with a single project.

GAO explained that “[t]he determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency’s needs in choosing a contractor that will best serve the government’s interests.” Further, “[t]he fact that a requirement may be burdensome, or even impossible for a particular firm, does not make it objectionable if it meets the agency’s needs.”

In this case, the GAO found, the restrictive past performance requirements were reasonably related to the agency’s needs. The GAO wrote that, for example, the requirement for experience with 10 or more traction elevators was reasonable because “the entire scope of work would cover the modernization of 20 elevators and 6 escalators, and that the minimum requirements for this factor were developed in accordance with GSA’s practice to develop its technical evaluation based on a project’s full requirements.”

GAO denied the protest, writing “[a]lthough the protester may disagree with the agency’s assessment of its needs, its disagreement with the agency’s solicitation approach and assessments, without more, does not render the agency’s determination unreasonable.”

The Armstrong Elevator Company protest makes two important points. First, in order to challenge the terms of a solicitation as being overly restrictive, a firm must show more than the fact that the firm itself is not capable of meeting those terms. And second, GAO will review the agency’s explanation for the terms of the solicitation with some deference. So long as the solicitation’s restrictions are reasonably related to the government’s needs, the protest will likely be denied.