Can a Bid Protest Be Used to Restrict Competition?
In March of 2018, the Department of the Navy issued a Request for Proposal (RFP) for a fixed-price contract containing a base year with four 1-year options for transportation services for the Department of Defense activities, installations, and organizations at many locations in the United Arab Emirates (UAE), Sultanate of Oman, Saudi Arabia, Kuwait and Qatar. The terms of the solicitation’s Performance Work Statement (PWS) required the contractor to provide all personnel and equipment needed to fulfill the services. Contract award was to be based on three evaluation factors – experience, past performance, and price.
In July of 2018, Al Baz 2000 Trading & Contracting Company, W.L.C. in Kuwait, filed a protest against the terms of the RFP. Al Baz asserted the solicitation contained contradictions dealing with the applicability of UAE host nation laws, which “precluded” a fair competition. The Navy amended the RFP and added the requirement to comply with host nation laws; specifically, the revised PWS now stated “The contractor shall ensure drivers have… necessary licenses to perform all transportation services in accordance with Host Nation regulations at each project location”.
In October, just days before the newly revised closing date, Al Baz issued another protest, claiming the solicitation was ambiguous by not specifying the type of licenses required. The protester argued that “by omitting in the solicitation that a limousine license is required…, the solicitation is inadvertently inviting unqualified offerors to submit a proposal”. As a general rule, the agency must give enough information in the solicitation that will allow offerors to make their own calculated decision to compete.
Al Baz also claimed the RFP was defective, because it didn’t require that offerors have the required licenses at the time of the proposal submission; but required the contractor to provide the contracting officer with proof that all personnel have the required licenses prior to starting the services. Al Baz argued the Navy was taking a superfluous risk of possibly awarding an unlicensed offeror, putting responsible vendors at a big disadvantage.
So, is this a protester trying to restrict competition or just asking for more details to respond to the RFP? The U.S. Government Accountability Office (GAO) has ruled in the past that government contracting officers, as a general rule, are not competent to pass upon the question of whether a particular local license or permit is legally required to perform a federal government contract and, for this very reason, the matter is made the responsibility of the contractor.
In addition, the main function of the GAO and the bidding protest function is to make sure that statutory and regulatory requirements are fulfilled, and there is open competition. In fact, they want protesters to bid to advocate for more open competition for government contracts. Using a bid to require an agency to amend their solicitation just to add more restraining specifications to meet the protester’s idea of what should be included in its solicitation sets an unfair disadvantage to those vendors who could be in the process of obtaining the needed requirements. In this case, the Navy requiring proof before the service starts allows for companies to get all the required licenses while competing. This allows an array of companies for the Navy to choose from and promotes a healthy competition.
Al Baz’s protest was ultimately denied in December 2018 by the GAO who confirmed that the GAO’s office does not generally permit a protester to use a protest to advocate for more restrictive, rather than more open, competition for government requirements.
If you have a solicitation that you would like assistance with to review the requirements or help in preparing your proposal, LightGrid’s GovCon Consulting specialists are available when you need us!