• R.D. Lieberman,Consultant

Protests that Agencies Should Use More Restrictive Specifications

The Government Accountability Office’s (“GAO”) role in reviewing bid protests is to ensure that statutory requirements for full and open competition are met, not that more restrictive, less competitive specifications be written. Appian Corp., B-417837.2, March 9, 2020.

Appian protested the specifications on an Internal Revenue Service (“IRS”) procurement of a case management system. This protest occurred after an earlier protest of an award, where corrective action was taken by the Agency to amend specifications, and Appian’s protest appeared to be timely.

Appian protested three changes in the specifications during corrective action by the Agency:

1) Requirement that the Federal Risk and Authorization Management Program (“FedRAMP”) needed to be certified not at the time of proposal submission but only when the contractor reached the Cloud Level solution in the program

2) Requiring that the Federal Information Security Management Act (“FISMA”) needed to be certified not at the time of proposal submission but only when the contractor reached the Cloud Level solution in the program.

The agency stated that the relaxation of the above two requirements more accurately reflected the agency’s needs. Appian admitted that if its protest were sustained, it would be the only vendor that met the solicitation’s mandatory cybersecurity requirements. The GAO denied these two bases of protest, stating that Appian sought to make the solicitation more restrictive of competition. GAO held that it will not review a protest that an agency should have drafted more restrictive specifications in order to meet the protester’s perception of the agency’s minimum needs. GAO dismissed both bases of protest.

3) Changed the database licenses from being provided by the contractor to be provided as government furnished equipment (“GFE”). The agency noted that it had the licenses available and would not need to pay for licenses for the eventual awardee. Appian abandoned this ground of protest, and then asserted that the Agency would need to pay for contractors to store data if award went to another contractor.

The GAO noted that database licenses and database storage costs were two different things, and this ground of protest was never raised until after the closing time for receipt of quotations. GAO therefore dismissed this protest ground as untimely.

Takeaway: Don’t protest at the GAO seeking to revise a solicitation to make the specifications more restrictive, and thus reduce competition. GAO’s mission is to protect and enhance full and open competition, not to diminish it.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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