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Agency Actions Early in the Solicitation Process Cannot be Protested

by | Sep 22, 2020 | Government Contracts

Contractors should not assume that every procurement action by every agency is subject to the protest jurisdiction of the Government Accountability Office (GAO). Some agencies have special exemptions from the federal procurement rules and regulations. In addition, as several contractors recently learned, some agency procurement actions, especially those in the early stages of the solicitation process, may be beyond the power of GAO to remedy what contractors believe to be unfair agency actions.

When the U.S. Patent and Trademark Office (PTO) in the Department of Commerce was doing market research to help it prepare a solicitation for business services, it issued a public request for information (RFI) with a draft solicitation attached. According to the RFI, the PTO, based on market research, “including the responses to this RFI” would “determine a pool of vendors that are deemed most likely to successfully meet the agency’s needs, and will invite those companies to participate in a PTAG Alternative Competition.” Vendors were to submit a corporate profile and limited responses to 11 questions but no pricing information.

The PTO got 229 responses from vendors but picked only 24 to receive the final solicitation. One of the incumbents, CGI Federal Inc., was not one of them. Along with Ascendant Services, Inc. it protested the PTO decision to GAO. CGI argued that the PTO’s decision was an abuse of discretion because CGI had done almost $100 million of work for the PTO that had involved “the same sort of technology and services” as what would be acquired through the PTO’s procurement.

In resolving the lawsuit, GAO had to consider two critical issues: was the PTO exempt from GAO protest jurisdiction and, if it was not, was the RFI legally a protest as defined by federal law.

PTO is not exempt from GAO protest jurisdiction. It would seem safe to assume that a Commerce Department agency like the PTO would be subject to federal procurement laws and regulations like the FAR. But that’s not necessarily so. The PTO has special procurement authority that exempts it from the procurement laws in Title 41 of the U.S. Code; the PTO is, therefore, exempt from the FAR and from the federal policy of “full and open competition.” However, the PTO is not exempt from the protest authority of GAO found in Title 31 of the U.S. Code. In fact, the PTO conceded that GAO had protest jurisdiction over the PTO.

The RFI cannot be protested.  Also in Title 31 of the U.S. Code, which did apply to the PTO procurement, is a definition of a protest. That definition includes challenges involving solicitations, and awards made or proposed under those solicitations. The RFI here was preliminary to a formal solicitation and focused on market research. It contained only a draft RFP and had warned vendors that the RFI was “not a solicitation and does not constitute a request for quotation or proposal.” Because the RFI was preliminary to a formal solicitation, it was not a document disappointed vendors could challenge under GAO’s protest jurisdiction.  GAO dismissed CGI’s lawsuit. CGI Federal, Inc., Ascendant Services, LLCB- 418807, B-418807.2, Aug. 18, 2020.

Thus, a vendor who believes an agency has treated it unfairly during the solicitation process must check both the procurement authority of the agency as well as the authority of GAO to provide a remedy.

Terry O’Connor is a Partner and Director of Government Contracts at Berenzweig Leonard. 

Berenzweig Leonard  is teaming up with  Red Team Consulting  for a monthly newsletter featuring reports on recent contract decisions, recent upcoming contracts, key protest decisions, events, and more. This post was published in the September 2020 newsletter. To sign up for our govcon newsletters, please email [email protected].