GAO typically affords agencies wide discretion to establish technical restrictions within solicitations.
In a recent decision, however, GAO confirmed that such discretion is not unbounded. When an agency’s technical restriction is unduly restrictive of competition, the GAO will sustain a bid protest.
Global SuperTanker Services, LLC, B-414987 et al., 2017 CPD ¶ 345 (Comp. Gen. Nov. 6, 2017) involved a Forest Service procurement for aerial firefighting aircraft to support the agency’s wildland firefighting objectives. Firefighting aircraft could be called to perform fire suppressant dispersal during either the initial attack or extended attack firefighting phases. The distinction between these two phases has to do with timing. Whereas “[i]nitial attack refers to those actions taken by the first resources to arrive at a wildfire,” extended attack includes “those actions conducted when a fire cannot be controlled by initial attack resources within a reasonable period of time.”
The procurement was structured as a “call when needed” basic ordering agreement. Under this structure, the Forest Service would not incur any costs for days when there was no firefighting activity. Instead it would issue orders to the BOA holders when services were needed, but the BOA holders were under no obligation to fill the order request. Given the unpredictability of Forest Service’s firefighting needs, the agency believed that this arrangement provided the necessary flexibility without incurring costs for time when aircraft was not needed.
The Solicitation also included a technical limitation on tank size for firefighting suppressant. As the Solicitation explained:
The minimum required volume is 3000 gallons (dispensable) and 27,000 pounds of payload. The maximum allowed volume is 5000 gallons (dispensable) and 45,000 pounds of payload…. Aircraft with less than 3000–gallon dispensing capacity or greater than 5000–gallon dispensing capacity will not be considered.
This type of limitation on tank size had not appeared in prior solicitations for similar aerial firefighting services.
Global SuperTanker Services, Inc. owns and operates a heavily modified Boeing 747-400 jumbo jet capable of aerial firefighting (more information can be found here). Given its substantial size, it boasts some impressive specifications, including a dispersal tank that can discharge 19,200 gallons of fire suppressant. Other than its tank capacity, the aircraft could meet all of the Forest Service’s technical specifications.
Interested in competing under the Solicitation, Global SuperTanker sent a letter to the Forest Service requesting an explanation of the tank size limitation. The Forest Service did not respond. Global SuperTanker then filed an agency level protest of the Solicitation’s restriction on tank sizes over 5,000 gallons. The Forest Service denied the protest, citing the fact that the Solicitation was, in part, to support initial attack operations for which tank sizes over 5,000 gallons were ill-suited. The Forest Service also noted that it anticipated issuing a solicitation in 2018 for tankers exceeding 5,000 gallons.
Global SuperTanker then protested at GAO, arguing that the Solicitation’s tank size limitations were unduly restrictive of competition. In response, the Forest Service reiterated its argument that the Solicitation called for initial attack operations, for which large tanker aircraft were not ideal. Additionally, the Forest Service also cited on four studies on aerial firefighting from 1995 to 2012, which the Forest Service argued supported its decision to limit the dispersal tank size under the procurement.
In a lengthy opinion, GAO rejected the Forest Service’s arguments and found the 5,000 gallon tank capacity limitation was, in fact, unduly restrictive of competition.
The GAO wrote that “[t]he determination of the government’s needs and the best method of accommodating them is primarily the responsibility of the procuring agency, since its contracting officials are most familiar with the conditions under which supplies, equipment and services have been employed in the past and will be utilized in the future.” However, “[i]n preparing a solicitation, a procuring agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are needed to satisfy its legitimate needs.” In this respect, “solicitations should be written in as non-restrictive a manner as possible in order to enhance competition.”
Turning to the Forest Service solicitation, GAO first addressed the Forest Service’s argument that the Solicitation was only seeking initial attack operations for which tank sizes over 5,000 gallons were ill-suited. Reviewing the solicitation, GAO noted that aerial tankers for both initial attack and extended attack operations were sought. As GAO explained:
[A]gency officials expressly indicated that the 5,000–gallon limitation was based upon the conclusion that [very large air tankers] were not suited to perform initial attack operations, omitting any discussion of extended attack operations. As a result, the agency’s argument represents a post hoc attempt to justify the 5,000–gallon restriction.
In other words, GAO concluded the solicitation did not support the Forest Service’s position because the solicitation expressly sought both initial attack and extended attack services and that the Forest Service’s argument to the contrary amounted to nothing more than litigation posturing with no basis in the factual record.
GAO then turned its attention to analyzing whether it was reasonable for the Forest Service to conclude that firefighting aircraft with tank capacities exceeding 5,000 gallons were ill-equipped for initial attack phase operations. In support of its position, the Forest Service cited four studies. During the briefing phase, Global SuperTanker vociferously challenged the applicability and validity of the studies cited by the Forest Service to support tank size limitation. As a result, the Forest Service abandoned its arguments on a number of the studies, choosing to rely principally on a 2012 study to support its arguments.
GAO highlighted two findings from the 2012 study in its decision. First, the 2012 study recommended that the “[m]inimum capacity [for firefighting aircraft] should be at least 2000 gallons of retardant, 3000 gallons or more would be preferred.” Second, the study noted that effectiveness of aerial application depended on the type of fire, and that larger tanks were better suited for particular situations, such as in forests with thick canopies. The 2012 study was further undermined by third party publications (including one from GAO) noting there was insufficient data being collected by the Forest Service to assess the effectiveness of various aerial firefighting aircraft.
GAO was unimpressed with the Forest Service’s studies. As it noted, “the 2012 study could be construed to support [Global SuperTanker’s] arguments,” rather than the Forest Service’s. Ultimately, GAO was unpersuaded by the studies because none provided rational support for the Forest Service’s position—that limiting tank size to 5,000 gallons was appropriate for initial attack operations—and a number of sources openly undermined the agency’s position.
Based in part on these findings, GAO wrote that “the agency has failed to provide reasonable justifications for the challenged specification, such that we are unable to conclude that the challenged specification is reasonably necessary for the agency to meet its needs.” GAO sustained Global SuperTanker’s protest. GAO recommended the Forest Service return to the drawing board and fully document its needs, then incorporate whatever technical specifications are reasonably necessary to effectuate those needs.
So, what can contractors take away from GAO’s decision in Global SuperTanker? The most important take away is that an agency must be able to demonstrate a clear, rational connection between the agency’s needs and the technical limitations imposed by a solicitation. Moreover, the thoroughness of GAO’s review in this case also suggests that GAO is willing to do more than merely take an agency at its word regarding its technical needs. Make no mistake: an agency has broad discretion to establish its minimum needs. But as the Global SuperTanker decision demonstrates, that discretion is not unlimited.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.