Solicitation requirement that an offeror possess a facility clearance prior to award is not unduly restrictive of competition, where the agency had a demonstrated need for a contractor with a secret clearance and could not waive this requirement for an unpopulated joint venture, even though each JV member individually possessed a clearance.
Management and Technical Services Alliance Joint Venture protested the terms of a Department of Homeland Security solicitation for financial and program management support services, alleging that the solicitation improperly restricts competition by requiring each offeror to possess a facility clearance prior to award.
Because the successful offeror would be required to handle classified information related to national security matters, the solicitation specified that the contractor must obtain and hold a facility clearance at the secret level prior to award.
MTSA, a prospective offeror, is an unpopulated joint venture, meaning that it does not have any employees or facilities, and also does not hold a facility clearance itself. MTSA submitted a question to the agency, inquiring whether it would accept an unpopulated joint venture as satisfying the facility clearance requirement when all of the joint venture members hold the appropriate clearance. The contracting officer simply responded “No.” This protest followed.
MTSA argued that the requirement for a facility clearance is unduly restrictive of competition, because it effectively prevents any unpopulated joint venture from receiving the award. The protester argued the agency should allow an unpopulated joint venture to rely on any clearances that its constituent members hold, particularly in situations where all of the members possess facility clearances.
As an initial matter, GAO found that DHS has reasonably explained its decision to include the facility clearance requirement. The purpose of the requirement is to minimize the risk of unauthorized disclosure of classified information and ensure that classified information is safeguarded appropriately. GAO found this reasonably related to the agency’s need for a contractor able to handle classified information.
Regarding MTSA’s specific allegation, GAO found the requirement was not unduly restrictive as applied to unpopulated joint ventures. Rather, as a logical consequence of the agency’s need, DHS required some method of identifying contractors qualified to handle classified information. Currently, DHS utilizes the Department of Defense, Defense Security Service (DSS) as its clearinghouse for security clearance matters. DSS does not permit a contractor to have access to classified information until a facility clearance has been granted, and provides no exception for unpopulated joint ventures even in instances where all of the members possess facility clearances.
Therefore, GAO found that DHS had a reasonable basis for requiring offerors, including unpopulated joint ventures, to obtain a facility clearance. While MTSA objected to the pertinent federal government policies as overbroad and asserted that DHS should be able to rely on its members’ facility clearances, GAO found this did not provide a valid basis for protest. While the requirement precludes unpopulated joint ventures from being eligible for award, the protester’s inability to satisfy a solicitation term does not render the agency’s need improper or the requirement unduly restrictive.
Further, GAO noted that the nature of classified information necessitates hard and fast rules for granting access, and such rules are not required to be tailored to accommodate the unique situation of an unpopulated joint venture. The protester’s disadvantage is caused by its unique circumstance as an unpopulated joint venture, not by the agency’s actions.
Management and Technical Services Alliance Joint Venture is represented by Steven J. Koprince, Matthew T. Schoonover, Nicole D. Potroff, and Shane J. McCall, Koprince Law, LLC. The government is represented by Andrew J. Baker and Justin V. Briones, Department of Homeland Security. GAO attorneys Todd C. Culliton and Tania Calhoun participated in the preparation of the decision.
