Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Although companies sometimes complain that an agency’s requirements for winning a contract are overly restrictive, the agency may have had a justifiable reason for those requirements.
Protesting contractor: ASC Group Inc., Vienna
Contracting agency: Department of Defense, Defense Logistics Agency
Protest issue: How restrictive can the government be in restricting competition?
Decision: Denied by the Government Accountability Office, Nov. 15, 2012
Postmortem: Contractors often say, “If the government did not include a certain requirement in a solicitation I could have given them a much better product or a much better price.”
While it is true that sometimes a requirement is onerous and indefensible, it is just as true that most agencies know exactly what they need and work very hard to find the product that will fit those needs.
ASC protested the request for proposal published by the Defense Logistics Agency. The DLA was issuing a contract to buy a commercial software quality-management tool and supporting services.
This software would allow the DLA to automate various services by “establishing surveillance requirements, scheduling personnel to perform surveillance, documenting performance and reporting results,” which would “allow DLA to track and monitor trends in performance, and to establish and monitor any needed preventive or corrective action.”
Before issuing the RFP the agency conducted market research to determine the availability of commercial software that would meets its needs.
The market research showed that such software was commercially available and, most important to this case, showed that a concurrent-user license was the most common. A concurrent-user license is a license based on a fixed number of users from an unrestricted population.
ASC protested on the grounds that requiring this type of license was overly restrictive. The company argued that its named-licensing structure (a license based on a specific individual, as opposed to a group of concurrent users) should have been permitted.
In denying the protest, the Government Accountability Office said that it “examine[s] the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny.” The GAO determined that “the record supports the reasonableness of the DLA’s requirement.”
What was present in this case, that is not always present, was a “contemporaneous recording [showing] DLA conducted market research before issuing the RFP to determine performance and licensing models offered in the commercial marketplace.”
It is often difficult for contractors contemplating a protest to determine how effective and how well-documented the agency’s market research was.
Even though it may seem that another product could suffice, the agency may have reasons for requirements that were not published and incorporated into the RFP. There is no way to know with certainty without filing a protest and getting the agency report.
Contractors should conduct their own market research before considering a protest, and if it seems that the justification for a published requirement is reasonable, a protest will probably do more harm than good.