Competition in Contracting Act of 1984 Restrictive Solicitation Requirements

Unduly restrictive solicitation under the Competition in Contracting Act of 1984 can make your government proposal writing efforts more difficult if you don’t understand your rights to protest the Agency’s solicitation. Many government contractors may choose to simply respond to the request for proposal as is without considering whether it is too restrictive.

A solicitation that provides that the experience and past performance of your affiliates will not be considered, even for proposals that demonstrate that affiliates will participate meaningfully in contract performance, can be unduly restrictive of competition where the agency fails to provide an explanation.

Government proposal writing is heavily regulated.  You have rights to challenge solicitation contents before bid closing. Government contractors often have a challenge finding proposal writers that understand these critical factors.

Restrictive solicitations that violate the Competition in Contracting Act of 1984 can impact your ability to submit a strong technical proposal. Therefore, decreasing your chances of high evaluation scores and award.

Example of Restrictive Solicitations Impacting Government Proposal Writing

An example of where you can have a restrictive solicitation is when the request for proposal states that you must demonstrate recent past performance (within five years) and relevant experience on similar projects. Then the solicitation informs you that  “[p]roject examples should be limited to those projects performed by the firm submitting an offer. The requirements of this factor cannot be met through the experience of the offeror’s parent, affiliate, or separate division.”

These are signs for considering whether you have an unduly restrictive solicitation and whether your should file a GAO protest. The balancing test also requires you to consider whether you want to take a chance at getting a project worth millions or simply taking the chance with your current proposal writing efforts.

In addition, if the RFP also states that to the extent you did not have a record of relevant past performance, your past performance would be rated “neither favorably nor unfavorably” and would be assigned a “[n]eutral” rating, this too can be looked at as a restrictive solicitation.

Restrictive Government Solicitations Violate the Competition in Contracting Act of 1984

The Competition in Contracting Act of 1984 requires that solicitations generally permit full and open competition and contain restrictive provisions only to the extent necessary to satisfy the needs of the agency. See 10 U.S.C. § 2305(a)(1)(B)(ii) (2006).

If you file a bid protest that challenges a solicitation provision as unduly restrictive of competition, the government contracting agency must then prove that the provision is reasonably necessary to meet the agency’s needs. GAO decided this very same issues in  Total Health Res., B-403209, Oct. 4,2010, 2010 CPD ¶ 226 at 3 (solicitation requirement for specific experience on the part of the prime contractor was unduly restrictive of competition where the agency did not show that its needs could not be satisfied by a subcontractor with relevant experience).

Agencies Can Publish Restrictive Solicitations in Certain Situations. When engaged in government proposal writing, understand that the determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion. In a bid protest, GAO 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.

• Government agencies must articulate a valid reason for restricting solicitations.
• General statements about its fear of non-performance may run the risk of violating the Competition in Contracting Act of 1984.
• Government proposal writers should understand these subtle nuances when bidding on federal government contracts.
• To even prevail in a bid protest, you want to make sure that you are also proposing an affiliate that would be performing parts of the contract. 

How Do Restrictive Solicitations Impact Your Ability to Get the Award?

Government contractors, especially small businesses, are always seeking to get access to larger contracts. However, a restrictive solicitation that violates the Competition in Contracting Act of 1984 can impact your ability to show experience doing larger contracts.

Regardless of how great your bid package looks, government proposal writing efforts usually go to waste. Sometimes offering teaming agreements with affiliates to get a larger contract is the only option, or you run the risk of only getting a neutral rating for past performance.

To Avoid Costly Mistakes, Get a FREE Bid Protest Checklist

If you need help litigating a bid protest for restrictive solicitation requirements or violation of the Competition in Contracting Act of 1984, call our government lawyers and consultants at 1-866-601-5518 for a free initial consultation.