Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, October 5, 2012, 1:15pm EDT – Last Modified: Friday, October 5, 2012, 1:58pm EDT
Some contractors worry that protesting the terms of a solicitation before an award is made will hurt their chances of winning, but it would be even riskier to not protest a solicitation the contractor believes is inconsistent with the law or common practice.
Protesting Contractor: Verizon Wireless, Laurel
Contracting Agency: General Services Administration
Protest Issue: Whether the requirements of an agency’s solicitation must be followed even if they are contrary to acquisition laws and customary commercial practices.
Decision: Sustained by the Government Accountability Office, Sept. 17, 2012.
Postmortem: A common misperception is that whatever the government puts in the solicitation must be followed, no matter how much it seems to be contrary to the law or common practice.
Few companies are willing to protest a contract award, and far fewer will even consider filing a protest when they suspect flaws in the solicitation because of the misconception about the effect it will have on their prospects for getting the contract.
Verizon was willing to challenge the terms of the solicitation that the GSA included in a request for quotations for wireless telecommunication products and services. The GSA solicited quotes from holders of Federal Supply Schedule contracts. In its request for quotations, the GSA told vendors they could take exception to the solicitation requirements. Verizon took exception to three terms of the solicitation and submitted its initial quote.
The GSA sent Verizon a letter telling the company that its exceptions were unacceptable. Before the time for the submission of revised quotes, Verizon filed its protest. The GSA, in response, argued that the protest was not filed timely.
A protestor is required to protest terms of a solicitation before submitting initial protests, or if errors are incorporated later, the company must file “not later than the next time for receipt of proposals following the incorporation.” Verizon clearly met this standard and as a result its protest was found to have been timely filed.
In a move that defies understanding, in the GSA’s response to the protest, the agency chose only to argue its losing position that the protest was filed untimely and declined to address the merits of Verizon’s protest. Verizon argued that the GSA’s solicitation terms were inconsistent with customary commercial practice and unduly restrictive of competition.
The GAO, after commenting on the GSA’s failure or refusal to respond to the protest, discussed the Federal Acquisition Regulation Part 12 requirement that solicitation for commercial contracts under FAR Part 8.4 should only include clauses that are “determined to be consistent with customary commercial practice.”
To determine what is customary, the FAR requires the government to conduct market research. The GAO sustained the protest determining that the GSA failed to conduct market research and included terms in its solicitation that were not consistent with customary commercial practice.
This case is a great example of a contractor that was rewarded for its willingness to file a pre-award protest when it found that an agency was conducting a solicitation contrary to the law. Although some contractors believe that filing a pre-award protest hurts their chances of winning the contract, competing in a solicitation that is inconsistent with the law is much riskier.
If an agency is using terms that are not customary in its RFQ, contractors should seriously consider the benefits of filing a protest.