Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Keywords: Overly restrictive requirements
General Counsel P.C. Highlight: Where a protester challenges an RFP requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. GAO determines whether is justified in imposing the requirement by testing whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny.
CESC Skyline, LLC (CESC) protests the terms of a solicitation for offers (SFO), issued by the General Services Administration (GSA), seeking office and related space in Northern Virginia to house the Department of Defense (DOD) Medical Command Headquarters.
Based on DOD’s request for space, pursuant to a 2005 BRAC reorganization, GSA prepared a housing plan and prospectus, which was approved by Congress. GSA then issued the SFO, which provided for leasing 750,791 rentable square feet (rsf) in two phases. Phase I provided for moving all covered personnel by the September 15, 2011 deadline. The SFO required that 600,000 rsf be ready no later than June 1, 2011. Phase II provided for moving other non-BRAC related personnel and space not essential for BRAC operations. The remainder of the 750,791 rsf had to be ready for the government move no later than June 1, 2012.
CESC argues that the occupancy dates in the SFO are “extremely accelerated,” unduly restrictive of competition, and therefore in violation of the Competition in Contracting Act. GAO states that a contracting agency has the discretion to determine its needs and the best method to accommodate them. When preparing a solicitation, an agency may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs.
GAO concludes that the SFO’s accelerated occupancy schedule represents and legitimate agency requirement. First, CESC’s arguments that GSA and DOD have both recognized that the BRAC deadlines can be extended are flawed since the deadlines are statutory and the requirements of the SFO are designed to meet BRAC relocation requirements by the set deadlines. Second, CESC’s assertion that, to the extent the BRAC deadline is a legitimate requirement, it results in a de facto sole-source procurement, GAO concludes that the contention is without a factual basis where the record reflects that GSA identified viable properties, the contracting officer expected to receive a number of viable offers, and both offerors have affirmed that they can meet the required occupancy dates. GAO denied the protest.