Protester Cannot Show Prejudice from Agency’s Use of Commercial Item Procedures; GAO B-417292, Pilot Xpress LLC


Protest challenging the terms of a solicitation issued under commercial item procedures is denied, where the protester failed to show any prejudice arising from the agency’s use of commercial item procedures and, in fact, had submitted a proposal for the requirement. While the protester argued that flight training conducted under live-fire flight engagement scenarios was not available on a commercial basis, GAO declined to consider the appropriateness of the agency’s decision to use commercial item procedures absent evidence of prejudice.

Pilot Xpress LLC protested the terms of a request for proposals for aircrew flight and maintenance training for helicopters, issued by the General Services Administration on behalf of the Air Force. PX argued that the agency improperly is soliciting certain services on a commercial item basis, despite the fact that such services are not sold commercially.

The RFP requires firms to offer both classroom coursework, and hands-on training using both aircraft and flight simulators. PX contested the solicitation requirement for live-fire training, under which firms must provide both classroom coursework and training aboard aircraft equipped with mounted machine guns to be used in live-fire exercises performed by the trainees. According to the protester, live-fire training services are not available on a commercial basis, and therefore the agency cannot use FAR part 12 commercial services procedures.

GAO denied the protest, finding that PX was not prejudiced by the terms of the solicitation. When a protester cannot demonstrate prejudice, GAO will not decide the issue of whether solicited services properly are designated as a commercial item, or whether the solicitation properly was issued using commercial item procedures.

GAO noted that the sole reason the agency issued the subject solicitation is that the live-fire element is out of scope of the agency’s existing contracts for obtaining aircrew flight and maintenance training. The live-fire element therefore is central to the purpose of the solicitation. GAO also noted that PX has the capability to offer the live-fire element of the requirement, and that it had submitted a proposal in response to the solicitation that includes the live-fire element of the requirement.

PX did not challenge the agency’s need for the training but argued only that it should not be solicited as a commercial item. However, PX did not argue that any aspect of the provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, or that it otherwise is prejudiced by the agency’s use of commercial item procedures. PX’s sole basis for claiming that it has been prejudiced is its assertion that it will be required to use a subcontractor to provide these services as part of its proposal team.

According to GAO, even if it agreed with PX that the agency inappropriately solicited the live-fire element of the requirement as a commercial service, its recommendation would be to simply continue with the acquisition using only FAR part 15 negotiated contracting procedures. In light of the central nature of the live-fire element, GAO found not recommend that the agency eliminate the live-fire element from the solicitation.

Since PX is able to compete under the current RFP, and has not alleged or demonstrated that any aspect of FAR part 12’s provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, GAO found no basis to sustain the protest, even if it agreed with PX on the merits.

Pilot Xpress LLC is represented by Bryan R. King and Andres M. Vera of Offit Kurman Attorneys-at-Law. The government is represented by Amy A. Cook and Angie Calloway, General Services Administration. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.