Competition

Army Lawyer, Jan, 2007 by Ralph J. Tremaglio, III

The GAO sustained the protest, in part because the requirement that the MNS be APCO 25 compliant lacked a reasonable basis. (135) The GAO stated that since the RFP did not require the LMRs accompanying the system to be APCO 25 compliant and the agency did not know how the requested radios would be used by installations that would receive the MNS under the contract there was no reasonable basis to include the requirement. (136) In regards to the ten-kilometer-range-requirement, the agency was unable to articulate its rationale for that as well. Once again, the GAO found it was not reasonably related to the agency's legitimate need. (137)

Terms of a Solicitation Are Not Unduly Restrictive as Long As the Terms Are Reasonably Aimed at Satisfying the Agency's Legitimate Needs

In two separate bid protests this year, the GAO denied protests based upon unduly restrictive requirements in solicitations for GSA-leased office space. (138) In both cases, the GAO found the solicitation terms reasonably addressed the agency's needs and therefore denied the protests. (139)

In Bristol Group--Union Station Venture, (140) the protester alleged the terms of solicitation for offers (SFO) were unduly restrictive because it required the building space for the VA to be "within 2500 walkable linear feet" of amenities such as inexpensive fast food, inexpensive cafeteria or table service restaurants and other retail stores, cleaners, and banks, etc.. (141) Bristol asserted that the proximity requirements of the local amenities was unduly restrictive to competition. (142) The GAO disagreed, stating the requirement was reasonable based upon the VA's legitimate needs. (143) The VA employees had only thirty minutes for lunch and needed to have these amenities close by in order to allow them to walk to and from the locations within the time requirement. (144)

In Paramount Group, Inc., (145) the GAO determined a requirement for open area office space (146) that forced potential bidders who had interior offices already built in potential office space to demolish the existing offices thereby creating the open area office space was not unduly restrictive. (147) The protester was the present landlord for the DHS ICE in a building where the interior was already divided into separate offices. (148) Paramount alleged the requirement to renovate its current space placed it at a competitive disadvantage. (149)

The GAO restated the default rule that a contracting agency has the discretion to determine its needs and best methods to accommodate them, but those needs have to be specified in terms designed to achieve full and open competition. (150) In this case, the agency cited two reasonable reasons for the "warm lit shell" requirement: giving flexibility to GSA clients and allowing the agency to more easily compare the offers. (151) Since the agency demonstrated a reasonable basis for requiring the open office space, the GAO denied the protest. (152)

(1) Comp Gen. B-298172, Apr. 12, 2006, 2006 CPD [paragraph] 67.