The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Consultant Cherie Owen discusses Wilson 5 Service Company, Inc., B-422670, September 25, 2024, 2024 CPD ¶ 230, which provides helpful insights regarding protests challenging the terms of a solicitation.

GAO issued three sustain decisions in September, but the Wilson 5 decision stands out for its discussion of one of the most successful types of challenges to the terms of a solicitation: allegations that a solicitation’s terms are “unduly restrictive of competition.”  In Wilson 5, the General Services Administration (“GSA”) issued a solicitation pursuant to Federal Supply Schedule (“FSS”) procedures seeking quotations for facilities maintenance services.  The RFQ identified four non-price factors: (1) management plan; (2) prior experience; (3) past performance; and (4) small business socioeconomic category designation.  With respect to the prior experience factor, vendors were required to identify projects that included two or more facilities that were geographically dispersed from one another under one contract.  The solicitation further stated that “a distance of less than 200 miles between at least two of the locations under a project will be viewed as an unfavorable aspect of the offeror’s quote” and that “[p]rojects not inclusive of two or more facilities will be viewed as an unfavorable aspect of the offeror’s quote.”  Wilson 5 challenged the solicitation’s mandate that the experience must be demonstrated under a single contract—as opposed to allowing offerors to demonstrate that they met the experience requirement via multiple contracts.  Wilson 5 argued that this aspect of the solicitation was unduly restrictive of competition.

The unduly restrictive of competition argument functions as a catch-all solicitation challenge—it applies to a multitude of different factual scenarios in which a protester believes that the terms of a solicitation restrict or impede competition in an improper way.  Under GAO precedent, once a protester has challenged a solicitation provision as unduly restrictive of competition, the burden shifts to the agency to demonstrate that the provision is “reasonably necessary to meet the agency’s needs.”  Where a protester suggests a method of meeting the agency’s needs that is less restrictive of competition, the agency must then provide a reasonable explanation of its need for the more restrictive provision—otherwise, GAO may sustain the protest. 

In Wilson 5, the protester argued that the agency’s need to evaluate vendors’ abilities to manage geographically dispersed contractual requirements could be satisfied by a solicitation term providing for the evaluation of concurrent experience in geographically dispersed projects under separate contracts.  The agency, for its part, could not provide a rational explanation for why Wilson 5’s alternative did not meet its needs—as GAO noted, “[w]e find nothing in the record to support GSA’s assertion that performance of similar . . . services at multiple facilities should be viewed differently whether performed under a single contract or multiple, concurrent contracts.”  Although GSA’s response to the protest included conclusory statements that its requirement was reasonable, it failed to explain “why” it believed the term was reasonable. 

The protester next challenged the agency’s 200-mile cutoff under which vendors failing to demonstrate projects at least 200 miles apart would be downgraded pursuant to the RFQ’s mandate that such failure would be “viewed as an unfavorable aspect of the offeror’s quote.”  In challenging this aspect of the Solicitation as unduly restrictive, Wilson 5 noted that the stark cutoff was not reasonable and that Wilson 5 currently manages two projects that are 196 miles apart—which under the RFQ’s terms would be considered a negative aspect of Wilson 5’s proposal. 

In attempting to defend this aspect of its evaluation, GSA argued that approximately 40% of its locations were geographically dispersed at distances of 200+ miles.  However, GAO noted that this fact was not persuasive, given that nearly 60% of the facilities were not so geographically dispersed.  As GAO noted, it appeared GSA had “not consider[ed] that the majority of the locations are less than 200 miles apart” when adopting this requirement.  Because GSA again failed to provide a reasonable justification for this requirement, GAO sustained this aspect of the protest as well.

In sustaining the protest, GAO instructed GSA to “amend the solicitation to remove language assessing an unfavorable aspect to a quotation that does not demonstrate prior experience under one contract and a minimum distance of 200 miles between at least two facilities,” and to revise the solicitation to include an evaluation scheme that better reflects the agency’s needs.

The Wilson 5 decision provides an important reminder to contractors: if a solicitation term impedes your ability to fairly compete for a procurement, consult with your counsel about whether a challenge to the terms of the solicitation is appropriate. 

We would like to thank Cherie J. Owen, Consultant, for her contribution to this blog post.