A Protest Filing Does Not Constitute A Required Capability Statement

The Department of Interior, National Park Service (“NPS”) issued a sole source notification stating that it intended to issue a purchase order to renew software licenses for an existing human resources platform provided by Government Retirements and Benefits (“GRB”). Economic Systems, Inc. (“Economic Systems”) protested at the Government Accountability Office (“GAO”) stating that the agency’s decision to limit sources to GRB was unreasonable because it could offer a platform that provides the same functionality as the GRB platform, and it could easily migrate the data. The notice included a closing date of July 25, 2025.  Economic Systems, Inc., B-423747 and B-423747.2, August 22, 2025. 

The GAO noted that the NPS notice stated that the “requirement will be posted on a GSA Ebuy as a special notice and potential sources may respond,” and repeated this invitation in a subsequent paragraph.  GAO therefore concluded that the NPS notice “invited expressions of interest or capability statements because it repeatedly sought responses from potential vendors.”  GAO stated that where, as here, an agency has issued a notice of intent to make a sole source award and requested capability statements from interested firms, in order to be an interested party to challenge the sole source, the protester must submit a timely capability statement showing that the firm is interested in and capable of performing the requirement.

The agency explained that Economic Systems never submitted to NPS either a statement of interest or a capability statement prior to the close of the July 25, 2025 response period.  However, Economic Systems stated that its capability statement, including a declaration of its capabilities, was furnished to the GAO in the protest filed prior to July 25, 2025.  The GAO rejected this type of submission, stating the following:

Our bid protest forum does not exist to transmit documents between an interested vendor and an agency; instead our purpose is limited to deciding challenges to whether an agency’s actions with respect to a specific procurement are reasonable and in accordance with applicable procurement laws and regulation.  Thus, we conclude that pleadings submitted as part of a GAO protest do not constitute the submission of a capability statement [and Economic Systems therefore failed to establish its interested party status].

Accordingly, GAO dismissed the protest because the protester was not an interested party to challenge the NPS procurement.

Takeaway.  Do not assume that any factual content, such as a capability statement, that is required to be submitted in response to an agency notice or solicitation, may be properly submitted in a GAO bid protest.  Such material may be repeated in the factual content of a protest, but it must be timely submitted to the agency that requested it before your protest is submitted to GAO.

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