Link: GAO Opinion
Agency: Federal Emergency Management Agency
Disposition: Protest denied.
Keywords: Commercial items
General Counsel P.C. Highlight: Challenges over whether a product is considered to be a commercial item is largely within the discretion of the contracting agency. These determinations are given great deference by the GAO and are very difficult to overturn on protest without significant evidence that the decision by the contracting agency is unreasonable.
GIBBCO LLC protested the terms of solicitation, issued as a commercial item acquisition by the Department of Homeland Security, Federal Emergency Management Agency, for alternative housing units for disaster victims. In this protest, GIBBCO claimed that the solicited units were not commercial items and that FEMA did not provide sufficient time for vendors to submit responses. The GAO found that FEMA had gone through the proper steps to determine the solicited units to be commercial items. Additionally, because the procurement was conducted under the FAR Subpart 12.6 Streamlined Procedures For Commercial Items, the GAO examined whether FEMA was allowed to require submission of proposals in less than 30 days. On this issue, the GAO determined that FEMA was only required to provide the potential offerors with a reasonable opportunity to respond. As such, both grounds of GIBBCO’s protest were denied.