Requiring Offerors to Disclose Identity of Customers Is Not Unduly Restrictive; Tata American International Corporation, GAO B-419956.8

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Protest alleging that solicitation was unduly restrictive is denied. The solicitation required offerors to identify their past customers. The protester argued this requirement placed it a competitive disadvantage because many of its commercial contracts had confidentiality clauses that prohibited the protester from disclosing the identity of its customers. GAO, however, found that the requirement was reasonably related to the agency’s need to validate offerors’ experience. An agency is not required to eliminate a disadvantage an offeror may experience based on its own business circumstances.

The National Institutes of Health (NIH) issued the Chief Information Officer-Solutions and Partners (CIO-SP4) solicitation. The CIO-SP4 seeks to award multiple IDIQ contracts for information technology services. The solicitation provides for a three-phase evaluation of proposals. In the first phase, offerors must submit a self-scoring sheet to demonstrate their corporate experience. On this sheet, offerors had to provide information on their prior contracts, including the name of the customer.

Tata American International Corporation filed a protest, alleging that the requirement to identify past customers was unduly restrictive of competition. Tata contended that many of its relevant commercial contracts contained confidentiality provisions that prohibit disclosure of the type of information required by the solicitation. Thus, Tata claimed, this requirement placed it a competitive disadvantage.

When a protester challenges a requirement as unduly restrictive, the agency must show that the restriction is reasonably necessary to meet the agency’s needs. GAO believed that NIH had reasonably explained that this requirement ensured that an offeror’s claimed experience is legitimate. Tata had not identified any procurement law or regulation that prohibited an agency from requesting this type of information.

Tata, however, contended that NIH didn’t need to validate corporate experience because there are already pre-existing civil, criminal, and administrative measures that prohibit offerors from making false statements in their proposals. But GAO reasoned that the requirement was essential for to avoid fraud. Tata really just disagreed with the agency’s view that threat of legal sanction for making false proposal statements was not enough to protest the agency’s interests.

Tata further argued that NIH could accept other forms of information to validate corporate experience. As an example, Tata noted that other agencies, like GSA, have allowed offerors to provide alternative information—like redacted contract documents—to show corporate experience.

But GAO reasoned that each procurement stands on its own. One agency’s practices under one procurement do not bind another agency in a different procurement. Even if other agencies had allowed alternative documentation, nothing prevented NIH from imposing an otherwise reasonable requirement to identify customers.

Ultimately, GAO concluded that an agency is not required to eliminate a disadvantage an offeror may experience based on its own business circumstances.

Tata is represented by David T. Hickey, Amba M. Datta, and Ken M. Kanzawa of Kelley Drye & Warren LLP. The agency is represented by Krystal A. Jordan of the Department of Health and Human Services. GAO attorneys Jonathan L. Kang and John Sorrenti participated in the preparation of the decision.

GAO -Tata America International Corporation