Government Fight and Arguments for Why its Solicitation Was Unduly Restrictive of Competition Came too Late.

 GAO Sustains Protest Alleging Solicitation Is Actually Unduly Restrictive of CompetitionIn a recent bid protest filed by Pitney Bowes, Inc., of Washington, DC, the U.S. GAO sustained the protest against Department of the Treasury, Internal Revenue Service (IRS). Pitney Bowes litigated the case on the premise that the technical specifications stated in the solicitation were unduly restrictive of competition.

The agency lost because it could not meet the legal standard of showing that the technical requirements in the RFP  were reasonably necessary to meet the agency’s needs.

LPTA: The contract was a lowest priced technically acceptable fixed price contract issues via the General Services Administration’s (GSA) e-Buy system.

The RFP was for four PS200 folder/inserters with four 500 sheet capacity sheet feeders, and four PS200 high capacity feeders, or equivalent machines, to replace existing equipment used for document processing and mailing at the IRS’s National Distribution Center (NDC) in Bloomington, Illinois.

In its decision, GAO agreed that the requirements were unduly restrictive of competition and amount to a de facto sole source requirement. Pitney Bowes provided adequate showing the agency record failed show why the stated qualifications were necessary to meet the Department of the Treasury’s needs.

Procedural tip: This would be a case where you would have to file a pre-award protest because the challenge goes directly to the solicitation’s terms and not the award. Pitney Bowes had filed a previous protest.

Legal standard for filing unduly restrictive bid protests:  Although the federal government has wide latitude to determine its needs, there is a balance of that need with the Competition in Contracting Act (CICA). If the government wants to be unduly restrictive of competition, then it must articulate why the restriction in necessary to meets its needs. A comparison of past experienced with equipment or newly posed mission requirements can be valid reasons. GAO cited Columbia Imaging, Inc., B-286772.2, B-287363, Apr. 13, 2001, 2001 CPD ¶ 78 at 2 for this premise.

  • Once the protestor puts forth a forceful legal and factual basis for the protest, then the agency must then show its justification for actually restricting the solicitation’s requirement.

Why did the government fail in this protest? Because of lack of documentation to support its arguments in the protest. GAO toll a hard line here because the Department of the Treasury was top heaving in providing affidavits during bid protest litigation but failed to justify the requirement in the solicitation.

  • You, the protestor would also have to show that what you proposed would meet the agency’s requirement because if you don’t, then you would have no basis get the remedy of winning the protest.

Other government arguments that failed. Another reason why GAO took a hard stance in this unduly restrictive requirement was because the Department of the Treasury failed to show why accepting Pitney Bowes’ offer would require more employee time to operate. The agency’s argument about needing more storage space did not persuade GAO.

Tips for contractors. When responding to government contract solicitations for equipment, make sure that you go into more detail to show the capability of your offer. If, on the other hand, if you decide to file a pre-award protest because the requirements were unduly restrictive of competition, then note that in a lowest priced technically acceptable bid, it may not serve you to argue that your offer exceeded the government’s requirement unless you price was the lowest proposed.

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