Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Solicitation requirement
General Counsel, P.C. Highlight: In a challenge to the terms of a solicitation as overly restrictive of competition, where a solicitation requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness.
COB EventLizenz GmbH (COB Event) protested the terms of a request for proposals (RFP), issued by the Department of the Army for Civilians on the Battlefield (COB) in Hohenfels, Germany, as unduly restrictive. COB role players are part of a training program that prepare U.S. armed forces for scenarios that they will likely face on the real-world battlefield. In preparation for their existing contract’s expiration, the Army began acquisition planning for a follow-on contract in late February 2008, issued a solicitation in February of 2009, conducted a competition for a replacement contractor, and forwarded its evaluation for internal review in early May of 2009. However, that review brought to light solicitation flaws, which led to the cancellation of the solicitation at the beginning of September 2009, the same month in which the incumbent task order was to expire. In order to ensure continuity of the COB program, the Army sought and received approval to proceed with a bridge contract on a sole source basis, and published its intent to award such a contract to the incumbent contractor on Federal Business Opportunities (FedBizOpps), due to the contracting officer’s belief that only the incumbent could provide the required management for the exercises beginning in October. Four firms responded to this posting, indicating that they could perform the necessary services without interruption or excessive cost and the Army decided to conduct a limited competition.
For purposes of the limited competition, the Army issued an RFP to those firms that indicated that they would be capable of performing. COB Event did not submit a proposal, but instead protested the terms of the solicitation in an agency-level protest, complaining that the vetting requirements for the COBs was unduly restrictive of competition, and that the solicitation should have required compliance with German law pertaining to temporary employment. The vetting requirements referred to by COB Event were a part of the “technically acceptable” analysis that was to be conducted by the Army in awarding the contract. As part of this analysis, offerors were required to self-certify that their firms could provide “vetted COBs in place for the start of the contract,” where fully vetted COBs meant that the COBs had undergone a German Polizi and Military Intelligence investigation within the last 180 days and it was still valid.
The Army dismissed the agency-level protest because SST GmbH (the incumbent contractor) had already filed a protest with GAO involving the same solicitation. The Army then overrode the Competition in Contracting Act (CICA) stay against contract award and awarded the contract to Optronics, a contract that was terminated on the same day after Optronics advised that it could not fulfill the requirements of the contract. The contract was then awarded to SST GmbH, who was next in line for the award. COB Event then protested to GAO, raising the same complaint as the agency-level protest.
When a protest challenges a specification in a solicitation as being unduly restrictive, it is up to the procuring agency to show that the specification is reasonably necessary to meet its needs, a threshold that is then held to a “logical scrutiny” standard. GAO determined that when, as in this instance, “…a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness.” Because fully vetted COBs were necessary to this solicitation, and due to the security and safety factors inherent in civilians having access to military operations, COB Event’s protest was denied. Furthermore, the short timeline in which to provide vetted COBs was also not an unreasonable requirement because the existing contract was nearing expiration and the troops were preparing for imminent deployment.