Protests challenging the terms of a solicitation as unduly restrictive are denied. The protesters argued that the solicitation’s scored evaluation criteria restricted competition because it was impossible for most small business to achieve the maximum number of points available under some criteria. GAO disagreed, noting that the scored criteria were not mandatory requirements; even if offerors could not qualify for every point under some of the criteria, they would not be eliminated from the competition. Moreover, just because some offerors could not qualify for all the points available under the criteria did not make the scored criteria unfair.
The General Services Administration administers pools of small business IDIQ contracts under the One Acquisition Solution for Integrated Services (OASIS) program. Agencies place orders under these pooled contracts for various professional services.
GSA issued a solicitation for new OASIS small business IDIQs. The solicitation provided a two-step evaluation process. First, proposals would be evaluated to determine whether they satisfied certain minimum requirements. If the proposals satisfied the minimum requirement, they were then evaluated under scored evaluation criteria. For the scored evaluation, offerors had to self-certify whether they qualified for points under various experience, past performance, certifications, and clearance criteria. Offerors could earn a total of 10,000 points under the scored criteria.
Two prospective offerors, ADVENTureOne LLC and Apogee Engineering, LLC, filed protests challenging the terms of the OASIS solicitation as unduly restrictive.
Apogee claimed the solicitation was too restrictive because it required offerors to have purchasing and estimating systems approved by the Defense Contract Management Agency. Apogee contended that it was nearly impossible for a small business to receive government approval of purchasing and estimating systems.
But the solicitation expressly provided that approved purchase and estimating were not mandatory. Rather, offerors were encouraged to get DCMA approval of their systems. The purchase and estimating system provisions were not minimum requirements; they were scored criteria under which an approved system would receive a higher score. But offerors who did not have an approved system were not eliminated. Indeed, in the previous pool of OASIS contracts, less than 10% of the contractors had approved purchase and estimating systems. GAO did not believe these provisions unduly restricted small businesses.
Still, Apogee argued that approved purchase and estimating systems were restrictive because the agency didn’t actually need approved systems. But GAO repudiated this argument, finding that awarding contracts to firms with approved systems allowed GSA to provide high level professional services under cost-type contracts.
Finally, Apogee argued that the provisions on approved systems were restrictive because it was impossible for it to earn points under these provisions. But GAO did not believe this made the provisions unfair. To be sure, an offeror that had an approved system would have an advantage over Apogee. Agencies, however, are not required to equalize a competitive disadvantage a firm may have due to its particular business circumstances.
The other protester, ADVENTureOne, contended that the solicitation was unduly restrictive because it limited the points a mentor-protégé joint venture could earn under the scored criteria. For a mentor-protégé joint venture to earn points under the solicitation’s systems, certifications, and clearances criteria, both members had to satisfy the solicitation’s requirements. But according to ADVENTureOne, under SBA regulations, a procuring activity is supposed to consider the capabilities and past performance of each joint venture member as the capabilities and performance of the entire joint venture.
GAO, however, noted that the SBA regulations primarily pertain to the past performance of entity submitting an offer. The systems, certifications, clearances criteria do not concern past performance. Nevertheless, GAO conceded, these criteria do implicate the offerors capabilities, which are covered by the SBA regulations. Even so, GAO reasoned, the systems, certifications, and clearances criteria were scored criteria, not mandatory requirements. Even if an offeror could not satisfy them, they would not be eliminated from the competition, so the provisions were not too restrictive.
ADVENTureOne also argued that GAO should summarily sustain the protest because GSA uploaded documents to GAO’s Electronic Protest Docketing System that were inaccessible. But GOA rejected this argument, reasoning that ADVENTureOne did not advise GAO that it was having problems accessing the documents. Indeed, GSA provided additional copies of the inaccessible documents to ADVENTureOne several days before comments were due, and the company cited to those documents in its comments.
ADVENTureOne is represented by Carrol H. Kinsey Jr. of Redmon, Peyton & Braswell, LLP. Apogee is represented by Amber Scott. The agency is represented by Stephen T. O’Neal of the General Services Administration. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
