Filed under: Bid Protest, Proposal, Unduly Restrictive | Tags: 10 U.S.C. 2305, B-403397.3, B-403435, B-403561, bid protest, FAR 11.002, FAR 11.105, pre-award protest, unduly restrictive, unduly restrictive of competition
The Federal procurement system mandates full and open competition. The Competition in Contracting Act of 1984 expressly requires agencies to specify their needs and develop specifications in a manner designed to achieve full and open competition. Solicitations are required to include specifications that permit full and open competition, and may include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency. See 10 U.S.C. § 2305(a)(1)(B). These basic requirements are further embedded in FAR part 11, which provides that, to the maximum extent practicable, agencies must articulate their requirements in terms of functions to be performed, performance characteristics required, or essential physical characteristics. FAR 11.002(a)(2). Agencies are precluded from specifying their requirements solely in terms of a particular firm’s product unless the particular brand name, product or feature is essential to the government’s needs, and market research shows that other companies’ similar products lacking the particular feature do not meet the agency’s needs, or cannot be modified to meet the agency’s needs. FAR 11.105.
The rules obviously are written to promote competition. Therefore, in cases where the solicitation specifications prohibit a firm from supplying its product or services, but the firm believes its product or services can satisfy the agency’s mission needs, the firm may have no choice but to challenge the specifications as unduly restrictive of competition.
In recent months, there have been a number of decisions where the protester successfully argued that the solicitation was unduly restrictive of competition. In one case, the agency required that all the computers and standard LCD monitors purchased be from the same manufacturer and that the computers use only an Intel-based microprocessor. The GAO concluded that there was no basis for these restrictions. NCS Technologies Inc., B-403435, Nov. 8, 2010, 2010 CPD ¶ 281. In a second decision, GAO found unduly restrictive a requirement that only vendors that were the original equipment manufacturer’s authorized repair facility could compete for a commercial item acquisition for the repair and overhaul of pumps. Missouri Machinery &Engineering Company, B-403561, Nov. 18, 2010, 2010 CPD ¶ 276. Finally, GAO concluded that a solicitation requirement that firms submit proposals based solely on a brand name list of particular products was improper because the solicitation did not include salient characteristics for the brand name products. GAO specifically found that the agency has not taken the steps necessary to procure its requirements using other than full and open competition. California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters, B-403397.3, March 21, 2011, 2011 CPD ¶ ___.
In the context of a bid protest allegation that a solicitation is unduly restrictive of competition, GAO will scrutinize closely an agency solicitation to ensure that the solicitation is written to promote full and open competition. A firm similarly situated to those in the cases discussed above — that has a product or service, especially an item sold in the commercial marketplace, that it believes can meet the agency’s mission needs, but is otherwise barred from competing because of a solicitation provision that favors a particular source or sources–has the right to challenge the solicitation terms and push for the right under procurement laws and regulations to compete and have its product or services fairly considered. Important to remember is that any such challenge to the solicitation must be raised with the agency prior to the closing date for proposals.
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