Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest sustained.
Agency’s misclassification of a procurement for facilities support services on the Federal Business Opportunities Internet website under a “miscellaneous” product classification code improperly deprived the protester of an opportunity to respond to the agency’s solicitation and was not consistent with the agency’s obligation to use reasonable methods to obtain full and open competition.
General Counsel P.C. Highlight:
TMI argues that FEMA’s classification of the RFP under a product (as opposed to service) code did not reasonably inform the protester or other firms of the procurement. TMI argues that the RFP should have been classified under either code M, “Operation of Government-Owned Facility,” or code R, “Professional, Administrative, and Management Support Services.” GAO states that The Competition in Contracting Act of 1984 (CICA) generally requires contracting agencies to obtain full and open competition through the use of competitive procedures, the dual purpose of which is to ensure that a procurement is open to all responsible sources and to provide the government with the opportunity to receive fair and reasonable prices. In pursuit of these goals, a contracting agency must use reasonable methods to publicize its procurement needs and to timely disseminate solicitation documents to those entitled to receive them. The official public medium for providing notice of contracting actions by federal agencies is the FedBizOpps website, which has been designated by statute and regulation as the government-wide point of entry. An agency’s notice must provide an “accurate description” of the property or services to be purchased and must be sufficient to allow a prospective contractor to make an informed business judgment as to whether to request a copy of the solicitation. In this regard, the FAR requires agencies to use one of the procurement classification codes identified at the FedBizOpps website to identify services or supplies in its notices on FedBizOpps, and contracting officers must use the most appropriate classification category. GAO has found that an agency failed to effectively notify potential offerors of a procurement and to obtain full and open and competition under CICA, where the agency misclassified the procurement.
Product and service codes are provided to make manageable searches of large numbers of procurements; that is, the classification codes allow potential offerors to narrow their searches in a meaningful way to find procurement opportunities. Misclassifying a procurement makes difficult, if not impossible, the task of locating procurement opportunities under other search terms. Here, because TMI reasonably relied in its search on the codes that most closely represented the types of services it could provide–M and R–as a means to narrow the search results, it could not have found this listing no matter what additional search terms it entered or selected. FEMA’s argument that a prudent vendor could have used various available search terms, such as the NAICS code, to locate the listing assumes the vendor would anticipate that the procuring agency might have misclassified the requirement and would therefore omit any product or service code from its search. GAO finds this assumption unreasonable. In conclusion, GAO finds that FEMA’s misclassification of this procurement deprived TMI of an opportunity to respond to the RFP and that FEMA therefore did not use reasonable methods to obtain full and open competition as required by CICA.