Filing Pre-Award GAO Protests for Overly Restrictive RFP Requirements

As a CEO, you wonder how you can overcome government RFPs with overly restrictive RFP requirements. Whether intentional or not, government contracting agencies soverly restrictive RFP provisionsometimes post RFP’s that appear to be too restrictive. Your task is to understand how to overcome this type of mistake in a GAO protest. One important factor is that you must challenge the issue before bid submission. Failure to do so will get your case dismissed. The following should give you an idea of how GAO reviews overly restrictive RFP provisions.

On the issue of overly restrictive RFP provisions,  the recent GAO protest case of Iyabak Construction, LLC,
B-409196 (Feb. 6, 2014) GAO found that the agency failed to articulate a rational basis for solicitation’s refusal to consider experience and past performance even of affiliates with firm commitments to perform part of the work.

More specifically, GAO found that a solicitation that provides that the experience and past performance of an offeror’s affiliates will not be considered, even for proposals that demonstrate that members will participate meaningfully in contract performance, creates overly restrictive RFP provisions and limits competition when the agency fails to provide an explanation that sets forth a reasonable basis for the restriction.

In Iyabak, the  RFP was issued as a small business set-aside and provided for the award of up to three task order contracts for design, construction, and repairs at Eielson Air Force Base and other installations in Alaska.  

The Air Force informed offerors that award would be made on a best-value basis using a two-phase evaluation process.  During the first phase, the agency was to evaluate offerors under the following factors, in descending order of importance: relevant experience; past performance; and organization. Bidders were also informed that the Air Force would invite only the most highly qualified firms to participate in phase two of the procurement.  

The RFP also informed bidders 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.” It is an RFP statement like this in a solicitation that can trigger a pre-award bid protest for overly restrictive provisions. On the issue of past performance, offerors were instructed to demonstrate recent (within five years), relevant experience on similar projects.

After review of the GAO protest that challenged overly restrictive RFP provisions, GAO cited to the Competition in Contracting Act of 1984 and stated that Act 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.  The point here is that not all requests for proposals are unlawfully restrictive.

How the Agency Overcomes Overly Restrictive Protest Challenges

If you file a GAO protest that challenges overly restrictive RFP requirements, the procuring agency can still establish that the provision is reasonably necessary to meet its needs. Therefore, your approach to the bid protest should not just be that the entire solicitation is too restrictive. As a protestor, you should also argue that the agency does not have a reasonable necessity to restrict the solicitation provisions. See Total Health Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 3 (solicitation requirement for particular experience on the part of the prime contractor was unduly restrictive of competition where the agency failed to justify its actions.)

In this case, the Air Force did not show that its needs could not be satisfied by a subcontractor with relevant experience). As a practical matter, GAO will only examine the adequacy of the agency’s justification for an overly restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny.

How Your Protest Should Be Structured for Overly Restrictive Challenges

As bid protest lawyers, we often let our clients know that the agency has broad discretion to determine its own needs. GAO will not question it. However, it will inquire into the reasonableness of unduly restrictive RFP requirements. If you have the means to perform, whether, through your own capability, a subcontractor or affiliate, you must be able to articulate this in a GAO bid protest. Making the naked allegation that the solicitation was overly restrictive may not win the fight.

You should also demonstrate that you can rebut the agency’s restrictive presumption. Another point that the GAO made was that it had previously found that government contracting agencies could provide overly restrictive RFP provisions that limited the capability to the prime contractor due to the size and complexity of the procurement. Yet, even with this decision, one must wonder why the FAR allows for subcontracting to larger businesses or teaming partners that could have the requisite capability to perform. In Iyabak, the agency simply stated that it had previous problems in the past when prime contractors proposed affiliates.

GAO ruled that the agency’s  explanation did not address the protester’s position that it is unreasonable for the agency to refuse to consider the experience and past performance of affiliates where there are firm commitments for affiliates to participate meaningfully in contract performance. Hence, an overly restrictive RFP requirement. Again this supports the position above that when filing a bid protest, you should also show that you have a backup that minimizes the government’s risk of substandard performance.

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