Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Corrective Action; FSS Contract
General Counsel P.C. Highlight: In negotiated procurements, agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. GAO will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action.
Alaska Structures, Inc. (ASI) protests the corrective action taken by the Department of the Army (Army), under a request for quotations (RFQ), with respect to an order for shelters and related items.
The RFQ, issued under FAR part 8.4, sought shelters and related equipment on a brand name or equal basis for soldiers in Afghanistan. Vendors were informed that an order would be issued to the firm submitting the lowest-priced, technically-acceptable quotation. ASI protested the award of the contract, arguing that not all of the awardee’s quoted items were on the firm’s FSS contract, and that two of its proposed items did not satisfy the RFQ’s salient requirements. The agency issued a stop work order to the awardee. After ASI filed a supplemental protest, the agency decided to take corrective action. Specifically, the agency stated that it would terminate the order issued to the awardee and recompete the items that had not yet been delivered.
ASI asserts that, because the awardee’s quotation was technically unacceptable, the agency should have issued an order to ASI for the items that had not yet been delivered. GAO states that in negotiated procurements, agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. GAO will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. GAO has found unobjectionable an agency’s cancellation of a negotiated procurement after receiving proposals where the agency determined that the solicitation overstated the agency’s requirements and the agency would seek enhanced competition by relaxing its requirements.
GAO finds the agency’s decision to relax its requirements to seek enhanced competition for the remaining items as reasonable. Although ASI concludes that the agency has not proven that its needs will be met by the relaxed efforts, the fact that the agency has evaluated its needs, found that the awardee’s products would meet its needs, and further determined that the awardee’s products were not compliant with the solicitation’s salient characteristics, is sufficient to demonstrate the reasonableness of the agency’s actions here. Moreover, where, as here, an agency determines that a relaxed specification will both meet its needs and afford enhanced competition for the goods or services being acquired, we will not object to the relaxation. The protest is denied.