Is Soliciting From Three Sources Sufficient Under Simplified Acquisition Procedures? Maybe Not
GAO sustained the protest of an excluded potential bidder finding that solicitation from three sources may not be enough to meet the requirement that agencies "promote competition to the maximum extent practicable" under simplified acquisition procedures. GAO found that the acquisition specialist "clearly knew" protester was interested in providing the required products and she did not have a reasonable basis to exclude them. GAO sustained the protest on this basis even though the agency solicited bids from three sources as required by FAR 13.104(b).
Known Bidders Must Be Solicited Unless Reasonable Basis to Exclude
This protest involves the acquisition of fluorescent lamp starters used on Eagle F-15 aircraft. Protester was previously awarded a contract to supply lamp starters but the contract was subsequently canceled when the agency learned that the product offered by protester did not comply with foreign sourcing requirements. After cancellation of its original order, protester unsuccessfully responded to a separate RFQ issued by the agency.
The RFQ that is the subject of the protest was issued on an urgent and compelling basis. The contract specialist contacted Coordinated Defense, a bidder who also had previously bid on an RFQ for lamp starters, but she did not contact protester. After receiving three bids, the agency awarded the contract to Coordinated Defense and this protest followed.
The agency offered several reasons why it did not contact the protestor including that protester had never performed on a contract for the item and its previous contract history for the item was negative (i.e., it misrepresented the country of origin of its proposed item). GAO rejected all of the agency's reasons for not soliciting protester and held:
[W]e fail to see a reasonable basis in the record for the acquisition specialist’s decision not to solicit a quotation from the protester, which she knew to be interested in competing to supply the fluorescent lamp starters and whose ability to furnish the items she did not have a reasonable basis to doubt.
This holding opens the door for any bidder who is known to an agency, yet not solicited to bid on an RFQ issued on an urgent and compelling basis, to file a protest even if they do not learn about the award until after the closing date for proposals. This holds true even if the agency receives bids from three sources as required by FAR 13.104(b).
Solutions Lucid Group, LLC, B-400967, Apr. 2, 2009, 2009 CPD
