The GAO generally will not review an agency’s decision not to accept a company’s unsolicited proposal to the federal government.
As demonstrated in a recent bid protest decision, because one of the GAO’s functions is to promote full and open competition, the GAO ordinarily will not consider a protest contending that an agency should have made a sole source award based on an unsolicited proposal.
First things first–what the heck is an unsolicited proposal? FAR 15.6 sets forth circumstances in which the government can accept a company’s proposal to enter into a contract with the government, even though the government has not issued a solicitation seeking the goods or services in question. Under the FAR, a valid unsolicited proposal must, among other things, be “innovative and unique” and be prepared independently by the offeror without government involvement.
That takes us to the GAO’s decision in Rante Corporation, B-411188 (June 1, 2015). The Rante Corporation decision involved an unsolicited proposal submitted to the IRS. Rante’s proposal was to provide the IRS with “appropriate tools to address IRS technology limitations” with regard to foreign account and asset reporting, as well as other purposes.
After reviewing Rante’s proposal, the IRS determined that the proposal duplicated functions of an existing IRS BPA which had been established in 2014. The IRS concluded that the unsolicited proposal did not provide an innovative or unique solution, and declined to accept it.
The day after receiving the IRS’s declination letter, Rante filed a GAO bid protest. Rante challenged various aspects of the IRS’s evaluation and disagreed with the IRS’s conclusion that the proposal was neither innovative nor unique.
The GAO wrote 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.” The GAO held that Rante’s protest “fails to provide our Office with a basis to deviate from this general rule.” The GAO dismissed Rante’s protest.
The FAR’s provisions for unsolicited proposals allow the government to take advantage of unique, innovative approaches developed by prospective contractors–even when the government has not requested proposals for the goods or services in question. However, as the Rante Corporation case demonstrates, if an agency declines an unsolicited proposal, the prospective contractor ordinarily will not have the right to a GAO review.