Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied
Keywords: Protesting Terms of the Solicitation
General Counsel P.C. Highlight: The determination of an agency’s actual needs and the best method of fulfilling them is primarily within the agency’s discretion, a contracting agency must specify its needs and solicit offers or quotations in a manner designed to achieve full and open competition; restrictive provisions or conditions may be included only to the extent necessary to satisfy those needs.
JRS Management (JRS) protests the terms of a request for quotations (RFQ), issued by the Department of Justice, Federal Bureau of Prisons (BOP), for educational support services at the Federal Detention Center (FDC) in SeaTac, Washington.
BOP issued the RFQ for the purpose of acquiring Spanish GED Instructor/Tutor services in order to assist Mexican citizen inmates achieve the educational equivalent of a GED certificate. The RFQ contemplates the award of a fixed-price requirements contract to the firm submitting the lowest-priced, technically acceptable quotation. Technical acceptability included compliance with specified educational requirements, which initially included the requirement to receive a satisfactory security clearance prior to award and attendance at three days of training with the Yakima school district to gain certification from the Mexican International Adult Education Administration. BOP then amended the solicitation to reflect the fact that the Yakima school district no longer offered a specific online training program (CONEVyT Portal). Vendors were instead instructed to provide proof of CONEVyT Portal certification with their quotations.
JRS protests the terms of the amended solicitation, primarily contending that the requirement to be trained and certified at the time of quotation submission, is unduly restrictive of competition.
GAO states that while the determination of an agency’s actual needs and the best method of fulfilling them is primarily within the agency’s discretion, a contracting agency must specify its needs and solicit offers or quotations in a manner designed to achieve full and open competition; restrictive provisions or conditions may be included only to the extent necessary to satisfy those needs. 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.
Based on the record, it is clear that the agency considers proof of certification at the time of quotation submission as necessary to accomplish its legitimate minimum needs. The agency explained that if the vendor is allowed to wait until after award to obtain the needed certification, the possibility exists that the vendor could fail or not successfully complete the CONEVyT Portal training. In that case, the agency would be without a qualified instructor to perform the contract services until the vendor either took the course again, or the contract was terminated and the requirements re-solicited. GAO finds the position to be reasonably supported and well within the scope of discretion properly afforded to the agency. The protest is denied.