• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Matter of Phoenix Environmental Design, Inc

  • By GCPC GovCon Legal Team
  • November 2, 2016
  • Bid Protests
  • 0 Comments

Matter of Phoenix Environmental Design, Inc.

Agency: Department of the Interior, Bureau of Land Management (BLM)

Disposition: Sustained

Keywords:  unduly restrictive competition

Decided: October 14, 2016

General Counsel P.C. Highlight:    Government Agencies cannot exclude products from a list of agency-approved products without a reasonable basis.

Summary of Facts

Phoenix Environmental Design, Inc. (“Phoenix”), a service disabled, veteran owned small business, filed a protest objecting to the terms of an RFQ (or Solicitation) issued by the Department of the Interior, Bureau of Land Management (“BLM”), for a procurement representing best value to the Government.  The Solicitation called for the provision of specific herbicides, which were identified by brand name.    The estimated value of the purchase order in question was approximately $5,524.00.  Since the items are commercial items, and the dollar value of the procurement was below $150,000, the Agency conducted the procurement using the commercial item procedures established under Federal Acquisition Regulation (FAR) part 12, and the simplified acquisition procedures established under FAR part 13.  

The BLM has a list of commercial herbicides that have previously been approved on BLM land.  This list includes the herbicides listed in the Solicitation, as well as other commercial herbicides not included in the Solicitation.  

The Agency argued that the use of only certain brand names was justified, because those specific herbicides were approved for use pursuant to BLM’s pesticide use proposal (PUP), a document that is written specifically for each particular piece of land.  The agency’s PUP is submitted for approval once every three (3) years.  The Agency maintained that amending the PUP for the intended land would take up to six (6) months.

The record, however, revealed that the 2012 PUP had expired in November of 2015.  The Agency’s new PUP, which was prepared in June of 2016, had not yet been approved.  The GAO inquired about the Agency’s use of certain herbicides in the Solicitation that were not on the currently expired 2012 PUP.  The Agency responded that the act of purchasing a chemical not on the expired list, prior to the completion of the new PUP, was not against BLM’s policy.

The Agency also asserted the use of brand name products were within their discretion and control and that the Agency “would not use generics.”

Basis for the Protest

Phoenix protested on the basis that the Government’s restricted list of commercially approved herbicides in the Solicitation was unduly restrictive of competition, as the BLM’s extended list included multiple herbicides that were equal to the products sought in the Solicitation.  

General Standard of Review

Given that the value of the procurement was below $150,000, the simplified acquisition procedures under FAR 13 were applicable.  As such, agencies are obligated to “obtain competition to the maximum extent practicable.”  Further, solicitations of quotes cannot restrict the solicitation to suppliers of only widely distributed products or limit the solicitation to well-known brands.  FAR 13.104.  However, where the contract officer determines that there is only one source of a product that is available, an agency is permitted to limit the solicitation.  

Protest Sustained

The GAO sustained the protest and found that the Agency’s brand name justification did not comply with the requirements of FAR Part 13.  The GAO noted that the Agency’s position, that the extended list of herbicides approved for use on BLM’s land did not apply because they were not listed on the Agency’s PUP was inconsistent with their statement that use of additional herbicides not on the last Agency PUP was not against Agency policy.

GAO found that while the Agency indeed had some discretion and control in determining which herbicides to list on the PUP, “in exercising that discretion, the agency must have a reasonable basis to exclude equal products from the PUP.  It cannot simply rely on the PUP to limit competition.”  Given that the Agency has provided no justification for excluding certain products for those herbicides listed in the Solicitation, the GAO found the decision unreasonable.   

Share

Related Posts

GAO’s BID PROTEST – 2020 YEAR IN REVIEW

January 19, 2021

New Procedure For Submitting Bid Protests Coming in May 2018

April 17, 2018

Matter of David Jones, CPA PC

October 13, 2017

Timely Filing in the Matter of: SageCare, Inc.; AeroSage, LLC

August 14, 2017

Leave a Reply Cancel reply

You must be logged in to post a comment.

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411