Agency Said It Didn’t Need to Strictly Follow Solicitation When Making Award. Why Did GAO Think This Argument Undermined the Entire Bid Protest System?

The PTO is exempt from most procurement laws. In this protest, the PTO argued it was also exempt from any requirement to strictly follow the solicitation. GAO rejected the argument. PTO may be exempt from many procurement laws, but the duty to follow a solicitation’s terms is a fundamental rule that binds all agencies. 

Global Patent Solutions, LLC, GAO B-421602.2, B-421602.3 

• PTO Protests – The protester challenged an award made by the Patent and Trademark Office (PTO). The PTO has a unique alternative competition method and is exempt from many public procurement requirements in the U.S. Code. Here, the protester argued the PTO had not followed the solicitation’s terms in evaluating proposals. PTO argued that because it was exempt from the procurement laws, it did not need to strictly follow the solicitation’s terms. 
• PTO Needs to Adhere to Solicitation – GAO rejected the PTO’s argument. Citing cases that were a century old, GAO noted the requirement to follow a solicitation’s terms is one of the fundamental principles of government procurement. Offerors must have notice of the basis on which awards are made. Indeed, GAO reasoned, if it accepted PTO’s argument, chaos would reign. There would be no foundation on which to review protests. PTO may be exempt from many procurement laws, but it is bound by this fundamental principle. 
• Small Business Subcontracting Plan – The protester argued that one of the awardees had not complied with the solicitation’s small business plan. GAO agreed. The solicitation stated 10 percent of the work had to be subcontracted to small businesses. Also, offerors had to submit enforceable teaming arrangements that identified the subcontracted percentages. The evaluators noted the awardee did not specify subcontracting percentages and had not submitted enforceable teaming agreements. Yet the PTO had treated this as a minor problem. But GAO found the awardee failed to comply with a material requirement. The agency should have found the awardee technically unacceptable. 

John E. Jensen, Toghrul M. Shukurlu, and Aleksey R. Dabbs of Pillsbury Winthrop Shaw Pittman LLP represent the protester. The agency is represented by Joe D. Baker II and Robert J. Palmer of the Department of Commerce. GAO attorneys Heather Self and Peter H. Tran participated in the decision. 

–Case summary by Craig LaChance, Senior Editor