Agency Requirement that Past Performance Occur at Specific Contracting Tier Found Unduly Restrictive


Procuring agencies have wide latitude in developing requirements for their solicitations.  When provisions are challenged, the U.S. Government Accountability Office ("GAO") merely evaluates whether the agency's justification for the requirement at issue is rational and can withstand logical scrutiny.  However, there are limits to the agency's discretion.  Agencies may not include requirements in solicitations that are unduly restrictive.  Specifically, 10 U.S.C. § 2305(a)(1)(B)(ii) provides that agencies may include restrictive provisions "only to the extent necessary to satisfy the need of the agency or as authorized by law."

A recent example of a challenge based upon that limitation is AES UXO, LLC, B419150, Dec. 7, 2020, in which an offeror challenged a solicitation's relevant experience and past performance evaluation criteria.  The solicitation at issue sought proposals for unexploded ordnance clearing services.  The solicitation contained a provision that, as written, required that responding offerors must demonstrate previous experience at the prime contractor level or as a member of a joint venture.  The solicitation precluded offerors from meeting the relevant experience and past performance requirements with work performed at the subcontractor level.

The agency argued that its intent behind the provision was to require that offerors only submit their own experience rather than experience of their proposed subcontractors because the agency could not be assured such subcontractors would actually participate in the project after award.  Despite the agency's characterization of the provision, the GAO found that the RFQ restriction as written did not achieve the agency's intent and instead penalized offerors with relevant experience as alleged by the Protester.  Accordingly, the GAO concluded that it was irrational to determine the relevance of identical work based on the contracting tier of an entity performing the work, sustaining the protest.

Additionally, the AES UXO, LLC case also provides a good example of the type of RFQ requirement that is not unduly restrictive.  The Protester also challenged RFQ language requiring relevant experience to be "similar to" and "align with" the scope of the performance work statement, arguing that it essentially requires offerors to have performed prior work at the exact site.  The GAO denied this ground of protest, stating that an incumbent contractor's inherent advantage in the process is unobjectionable as incumbent contractors may have an inherent advantage and such experience reduces performance risk to the government.

While this case provides book-end examples on the issue of unduly restrictive requirements, potential offerors faced with what they believe to be an unduly restrictive requirement should consult with counsel to determine whether it may be appropriate to challenge a restriction.  As always, Vandeventer Black's government contracts attorneys are available to assist.

1 We note that this case was decided prior to the enactment of the 2021 National Defense Authorization Act, which both the House and Senate passed, overriding a presidential veto.  The Act requires consideration of a small business concern's past performance as part of a joint venture if it has no relevant past performance of its own.  The Act also requires a Contracting Officer to consider past performance performed as a first-tier small business subcontractor as well.

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