The Government Accountability Office (“GAO”) has repeatedly dismissed protests where the protester has sought to restrict rather than promote competition, by, for example, seeking to solicit an agency requirement on a sole-source basis. UpToDate, Inc., B-422550.2, June 24, 2024.
The Defense Health Agency (“DHA”) awarded UpToDate (“UTD”) a contract for a commercial off the shelf point-of-care clinical decision support tool. Initially, DHA had procured UTD’s product from UTD on a sole source basis, but the reasonableness of those awards (including a “bridge contract”) were protested by another company. The GAO dismissed the protests when DHA indicated its intent to take corrective action—which corrective action was to terminate the awards and conduct a competitive procurement for this requirement. UTD challenged the reasonableness of the termination, asserting that it provided the only product capable of meeting DHA’s requirement.
GAO dismissed the protest, explaining that the argument that a protester should be awarded a contract on a sole-source basis because of its belief that it the only source capable of providing the material in the specification is not a matter that the GAO will consider. GAO, has declined, as a matter of policy to permit a protester “to use the bid protest function to restrict, rather than promote competition.” GAO has specifically stated that the purpose of its role in resolving bid protests is “to ensure that the statutory requirements for free and open competition for government contracts are met. Therefore, [GAO] will not review the merits of an allegation that a contract should be awarded on a sole-source basis.” Excell, Inc.-Request for Reconsideration, B-228304, Oct. 19, 1987. Regardless of how nuanced, a protest that an agency should solicit on a sole-source basis is not for GAO consideration.
Takeaway. Requesting that the GAO recommend the use of a sole-source to solicit a requirement will not be entertained by GAO and the protest will be dismissed.
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.
Opmerkingen