Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Keywords: Terms of a Solicitation
General Counsel P.C. Highlight: A contracting agency has the discretion to determine its needs and the best method to accommodate them. However, those needs must be specified in a manner designed to achieve full and open competition. Solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs.
Helionix Systems, Inc. protests the terms of a request for proposals (RFP) issued by the General Services Administration (GSA), Public Buildings Service (PBS), for administrative and technical support services.
The RFP, issued as a service-disabled, veteran-owned small business set-aside, provides for the award of an indefinite-delivery/indefinite-quantity (ID/IQ) contract for administrative and technical support services for a base period and four option years. The solicitation states that contractor staff will assist GSA in “improving processes, streamlining work, and accomplishing the work in the most efficient manner while still providing quality service to GSA and its customer agencies.” In this regard, the RFP estimates a need for 110 employees in a variety of labor categories, such as contract specialist, building operations program specialist, graphics artist, realty specialist, project manager, accounting clerk, computer programmer, security specialist, secretary, and video production specialist. Award will be made on a best value basis, considering price and four non-price factors: key personnel qualifications/experience; past performance; staffing plan; and management and quality control plan. The RFP also requires that key personnel must each have at least five years experience and submit three personal references. In addition, the RFP informs offerors that the agency will consider the experience and qualifications of key personnel relative to employment management, recruitment efforts, developing questions for interviews, experience with the interview process, experience in resolving performance problems, communication skills, and management style. The RFP also advises that changes in key personnel during the contract must be approved by the contracting officer. With respect to a program manager position, the RFP informs offerors that the contractor’s costs for the program manager “are not a billable item on the [pricing] schedule; therefore GSA anticipates the Program Manager’s costs being an overhead expense.”
Helionix complains that the solicitation’s requirements for key personnel are unduly restrictive of competition and violate procurement laws and regulations. GAO states that a contracting agency has the discretion to determine its needs and the best method to accommodate them. However, those needs must be specified in a manner designed to achieve full and open competition. Solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. Where a protester challenges a specification or requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification or requirement is reasonably necessary to meet the agency’s needs. GAO will examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. A protester’s mere disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. The fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency’s needs.
Here, GSA states that the key personnel requirements are necessary given the size and complexity of this procurement. In this regard, the agency points out that the contract potentially will provide $30 million in support services over the five?year contract period, and will involve an estimated 110 contractor employees. These requirements are intended to ensure that the contractor will be able to recruit, provide, train, and manage staff with appropriate qualifications and experience. In addition, GSA states that requiring references for key personnel is necessary to allow the agency to verify the experience of the key personnel. Finally, GSA states that the requirement for the contracting officer’s approval of key personnel substitutions is necessary to allow the agency to ensure that key personnel are replaced with qualified individuals. GAO finds that GSA has explained why it needed to ensure that its contractor’s management and oversight would be adequate to ensure successful contract performance, and Helionix has not shown that it was unreasonable of the agency to require such assurances. Rather, the crux of its objection to these requirements is Helionix’s belief that the agency should simply accept its promise that it would adequately perform. A protester’s disagreement with an agency’s judgment in this regard does not demonstrate that the agency abused its discretion.
Helionix also complains that the RFP’s restriction on billing the costs of the program manager directly to the agency violates the Federal Acquisition Regulation (FAR) and Defense Contract Audit Agency (DCAA) guidelines for cost allocations. GAO states that the solicitation dictates to offerors how they must conduct their cost accounting for government contracts. Although the solicitation provides that the program manager’s costs are not a billable item on the RFP’s pricing schedule, it does not instruct offerors as to how they are to account for these costs. That is, the contractor can, where appropriate and consistent with regulations, treat the costs of the program manager as a direct cost in its accounting system, even where the contractor cannot directly bill the agency for these costs. The protest is denied.