For practically the entire summer of 2021, we observed (and commented on) NIH’s numerous amendments to its long-awaited CIO-SP4 solicitation after it was finally issued in May 2021. By the time the deadline for proposals finally came, it had been amended eleven (!) times. Even with all those amendments, however, it appears that at least one offeror still had serious concerns about the final version. As it turns out, at least some of their concerns were warranted, per GAO, and has recommended the agency to amend the solicitation or revise its evaluation criteria.Continue reading
We all know online marketplaces are very popular among consumers, so it’s no wonder that federal agencies would want to get in on the action too. But a federal agency is different from an ordinary consumer because the federal government is required to purchase goods and services according to a vast array of federal statutes and regulations. When an agency tried to set up an online marketplace in violation of acquisition rules, GAO didn’t let it fly.Continue reading
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.
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.
A major tenet in government contracting is that agencies enjoy broad discretion in identifying their needs and developing the most appropriate solicitation to satisfy them. Though broad, this discretion is not unlimited. If challenged, an agency must demonstrate that its specifications are reasonably necessary to meet its needs and are not unduly restrictive of competition.
GAO recently affirmed this principle in Pitney Bowes, Inc., B-413876.2 (Feb. 13, 2017), when it sustained a protest challenging a solicitation’s requirements as being unduly restrictive of competition.
According to the GAO, a solicitation was unduly restrictive because it prohibited the consideration of the past performance of an offeror’s affiliates–even when the affiliates would contribute to performance of the contract.
The GAO’s bid protest decision in Iyabak Construction, LLC, B-409196 (Feb. 6, 2014) demonstrates that agency restrictions on the consideration of past performance must be reasonable. However, the Iyabak Construction decision should not be interpreted as standing for the principle than an agency can never exclude the past performance of an offeror’s affiliates if those affiliates will contribute to contract performance. Rather, the case suggests that it was the government’s failure to offer a good explanation–not the underlying restriction itself–that led to the “sustain” decision.
If a government solicitation contains a term that is unreasonably restrictive of competition, you may be able to successfully protest the matter to the GAO, which has sustained a number of such bid protests. The GAO’s decision in Missouri Machinery & Engineering Co., B-403561 (Nov. 18, 2010) is a good example of a successful GAO bid protest based on an unreasonably restrictive solicitation term.