The GAO has made it clear that contractors are considered to have “constructive knowledge” of items agencies post on the FedBizOpps website.  When agencies post on FedBizOpps, though, they must properly classify the posted information, or a GAO bid protest will be sustained, as was the case in TMI Management Systems, Inc., B-401530 (September 28, 2009).

The TMI Management Systems GAO bid protest decision stemmed from a Federal Emergency Management Agency solicitation for facility support services.  In February 2009, FEMA posted a pre-solicitation notice on FedBizOpps under product classification code 99, “Miscellaneous.”  The notice also included NAICS code 561210 (Facilities Support Services).  Two months later, FEMA posted a notice of the issuance of the solicitation on FedBizOpps, again under classification code 99.

The solicitation called for the contract awardee to perform a variety of services including administrative assistance, vehicle and equipment support, materiel handling support, operations support, and so on.  After the closing date for proposals, TMI Management Services, Inc. filed a GAO bid protest protest, arguing that FEMA’s classification of the solicitation under a product code, rather than a service code, did not reasonably inform offerors of the procurement.

The GAO noted that FAR 5.207 requires agencies to use the most appropriate procurement classification code identified on the FedBizOpps website to identify supplies or services in its posted notices.  In this case, the GAO held, it was improper for FEMA to classify an acquisition for support services using a code for products.

The GAO rejected FEMA’s contention that the classification was appropriate because none of the service codes were an exact match to the services sought.  “[A]lthough no service code was an exact match, a number of service codes include services such as those solicited here,” the GAO wrote.  “FEMA does not reasonably explain why one of these service codes would not have been more appropriate than a miscellaneous product code.”  The GAO sustained the protest, stating that “it is incumbent upon the agency to classify its procurement under the most appropriate category to promote competition.”