Any Way You Look At It: Agency Discretion is a Citadel
June 8, 2015
Reciting a common refrain, the Government Accountability Office (GAO) has once again upheld an agency’s broad discretion to determine its own procurement and solicitation needs. In its recent decision, Financial Asset Management Systems, Inc., B-409722.9 (Apr. 24, 2015), GAO provides an example of the latitude the "reasonableness" standard gives procuring agencies with respect to drafting RFPs: Unless a protester offers clear proof of an agency’s unreasonableness in setting the terms of a solicitation, the GAO will not reverse the agency’s decision.
This protest arose when the Department of Education (DOE) issued phase II of a two-phase procurement for student debt collection services. The solicitation was for multiple 5-year indefinite-delivery/indefinite-quantity contracts with a 5-year option period. The protester, Financial Asset Management Systems, Inc. (FAMS) challenged two aspects of the procurement: (1) the terms of the recovery rate/past performance evaluation factor; and (2) DOE’s failure to extend the due date for proposals after issuing an amendment answering 359 questions just three days before the due date. GAO found that DOE acted reasonably as to both.
With regard to the recovery rate/past performance evaluation factor, according to GAO the DOE established that the requirements it imposed on incumbent contractors most closely reflected the requirements of the current solicitation during the past performance period selected. Moreover, the DOE selected the period in part because of the reliability of the data from the performance period; without reliable data, past recovery rates would be a meaningless evaluation factor. In contrast, while arguing that the DOE’s performance period was too narrow and thus unreasonable, FAMS offered no evidence to support these allegations. Likewise, FAMS failed to identify a single response to the 359 questions received from offerors that necessitated extending the closing deadline. GAO found FAMS’s blanket assertion that the sheer number of responses required extending the due date unavailing and reiterated that the agency has discretion to determine what constitutes a reasonable response time and GAO will not second guess that determination absent proof.
FAMS’ failure to present specific evidence to support its allegations, coupled with GAO’s repeated recognition of an agency’s discretion in determining its procurement needs, proved fatal to the protest. Learning from FAMS, contractors can save time and money, and protect their credibility before the agency, by providing clear evidence of why an agency’s decisions regarding a solicitation are unreasonable. Without such evidence, a contractor would be better served by not protesting and instead spending its resources developing a winnin Lara Nochomovitz is responsible for the contents of this Article.
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