Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Thursday, February 13, 2014, 2:50pm EST
Iyabak Construction, LLC, B-409196, February 6, 2014
Agencies procuring goods and services generally know what they need better than anyone else. It is for this reason that agencies are given a great deal of discretion when establishing the terms and conditions of a solicitation, including the criteria by which offerors will be evaluated. As long as the criteria chosen by the agency are reasonably related to the agency’s needs, they will hold up under the scrutiny of a protest.
Sometimes, however, an agency will include evaluation criteria that go a bit too far, arguably restricting competition for award. This was the protester’s argument in Iyabek Construction, a protest recently decided by GAO. In Iyabek, the Army Corps of Engineers issued a solicitation for design, construction and repairs of various utilidor systems on Eielson Air Force Base and other military installations in Alaska.
The solicitation explicitly informed offerors that for both the experience and past performance evaluation factors, offerors would not receive evaluative credit for any parents, affiliates or other divisions. The evaluation under these factors would be limited to the experience and past performance of the company submitting the offer. The protester argued that this limitation unreasonably restricted competition.
The protester maintained that if an offeror had a firm commitment from an affiliate to be meaningfully involved in the contract performance, the agency should not ignore the experience and past performance of that affiliate in its evaluation. The agency did not agree with this position, as it had apparently been burned in previous solicitations where it did allow for the evaluation of affiliate’s experience and past performance.
The agency explained that in those previous procurements, offerors generally included only general statements regarding affiliate resources and availability without any firm commitment as to actual affiliate performance. As a result, the agency argued that its decision to restrict consideration to the experience and past performance of the actual offeror was reasonable.
GAO disagreed with the agency, noting that the agency didn’t actually address the protester’s argument regarding the experience and past performance of affiliates committed to participating in the contract performance. Affecting GAO’s decision was the agency’s failure to explain why its concerns could not be addressed by a less restrictive method of evaluation, such as requiring a firm commitment from an affiliate in order for its experience and past performance to be considered. GAO found the solicitation to be unduly restrictive of competition, and thus sustained the protest.
An agency can include restrictions in a solicitation as long as those restrictions are reasonably related to its needs. This case provides a good example of when an agency goes a little further than necessary. When a protester raises a challenge to an agency’s solicitation restrictions, it falls upon the agency to show that the restrictions are reasonably necessary to meet the agency’s needs. If the agency cannot do so, the protester will generally find themselves with a successful protest.