Offerors providing services/products to the Government on a competitive basis face many issues when proposing on competitive solicitations. One issue may be an unduly restrictive term or description in the contract specification or the Request for Proposal (RFP). A term or specification is “unduly restrictive” if it limits competition and is not required to meet the procuring agency’s needs.
Examples include using brand-name requirements; awarding a single versus multiple award Indefinite Delivery/Indefinite Quantity (IDIQ) contract; and an unreasonably short deadline for receipt of proposals. Using any of these in a competitive RFP gives the appearance of favoring one offeror or a select few offerors. When an offeror encounters this situation, they should address the issue prior to release of the final RFP. If the RFP has been released, there are ways to persuade the Government to allow for more competition. The first is to directly contact the CO. If the CO fails to revise the subject term or specification, the offeror should contact the Small Business Administration (SBA) Procurement Center Representative (PCR). If, after discussions with the CO and PCR, the unduly restrictive term or specification remains in the solicitation, the offeror can consider filing a protest.
Communication with the Government. There are many opportunities to communicate with the Government early in the acquisition process, through providing capability statements, responding to market surveys or requests for information, attending industry days and small business conferences, providing comments to draft RFPs, and attending one-on-one meetings between the Government and potential offerors. The Government is encouraged to communicate with industry prior to the release of a final RFP to gain input on concerns with regard to the requirements, contract type, terms and conditions, and the acquisition schedule. Seeking input from industry partners early in the acquisition process allows for a smoother proposal process for both the procuring agency and offerors. Once the final RFP has been released to industry for proposal, an offeror may only communicate its concerns to the CO. All communications after RFP release will be made available to all potential offerors.
Contact the PCR. The PCR is the Small Business Administration’s procurement analyst. The PCR promotes competition by reviewing procurement packages for possible restrictions to competition and recommends competitive strategies to increase small business participation in Government contracting. An offeror may contact the PCR to raise its concerns regarding the unduly restrictive term or condition.
Protest of Unduly Restrictive Term or Specification. If the restrictive term or specification is not addressed through comments to the CO or discussions with the PCR, the offeror may file a protest. The protest process is time consuming and may be costly. First, offerors should first file a protest with the procuring agency. It must be filed before the due date of receipt of proposals. If the procuring agency’s decision is unfavorable, a protest may be filed with the U.S. Government Accountability Office (GAO).
The protest will be considered timely provided that: (1) the protest is filed with GAO within ten days of the procuring agency’s decision; and (2) the protest at the agency level was timely. When an offeror files a timely protest that a term or specification is unduly restrictive, the burden is on the procuring agency to prove the term or specification is essential to meeting their needs. If the procuring agency reasonably justifies the use of the questioned term or specification, the burden shifts to the protester to prove the use is unreasonable.
It is wise for offerors to use early communication with the procuring agency to remove any unduly restrictive term or specification prior to the release of the final RFP. Often the procuring agency will relax those restrictions unless they believe the term or specification in question is essential to meeting that agency’s need.