In the course of responding to a Request for Proposals (“RFP”) or Request for Quotations (“RFQ”), have you ever encountered technical specifications that you regard as unreasonable? Have you ever wondered why the Government included those specifications in the first place and, more generally, whether those specifications are even necessary to fulfill the requirements giving rise to the acquisition? If your company is like most out there, the answer to these questions is a resounding "yes!” What to do next, you ask? A recent case before the Government Accountability Office (“GAO”) is instructive.
On February 13, 2017, the GAO issued its decision in Pitney Bowes, Inc., B-413876.2, through which it sustained a protest against unduly restrictive technical specifications found in a RFQ. The facts are briefly synopsized as follows:
On November 3, 2016, the Department of Treasury (the “Agency”) issued the RFQ through the General Services Administration’s (“GSA”) eBuy system.
The RFQ sought quotations for “four PS200 folder/inserters with four 500 sheet capacity sheet feeders, and four PS200 high capacity feeders, or equivalent machines” to replace certain document processing and mailing equipment at the Internal Revenue Service’s National Distribution Center in Bloomington, Illinois.
The statement of work (“SOW”) required that offerors propose a solution capable of meeting, among other requirements, the following technical specifications:
(1) “[a] high capacity sheet feeder with a capacity of up to 1,000 [sheets] per feeder with the capability of loading on the fly;” and
(2) “[o]ne envelope feeder to handle all types of envelopes from letters to flats.”
- On November 7, 2016, the contractor filed a timely protest with the GAO (i.e., before proposals were due) challenging these technical specifications as unduly restrictive of competition.
First, the protester alleged that, although it could not meet the “on-the-fly” loading capability requirement, it could satisfy the Agency’s needs by “using two high capacity sheet feeders, each holding 1,000 sheets.” In attempting to justify this requirement, the Agency “appear[ed] to concede” that the protester’s solution would provide for continuous operation, but argued that the use of the approach would require additional employee time, necessitate additional storage space, and would potentially result in more paper jams. Notably, the Agency did not support its allegations with empirical data. After reviewing the protester’s factual rebuttals to each of these arguments, the GAO concluded that the Agency “failed to provide a reasonable justification as to why a requirement for load-on-the-fly capability is necessary, when a different approach may be able to achieve the same results.”
Second, the protester contended that the requirement for the envelope feeder to handle “all types of envelopes” was not reasonably tailored to the Agency’s needs. The protester further explained that its standard envelope feeder accommodated “the most common types of envelope sizes and flats,” and that it could also handle the “more unusual sizes” by changing the feed in a process taking less than 30 seconds. In siding with the protester, the GAO noted that the Agency offered “no explanation” as to why it needed a feeder with universal functionality.
The Pitney Bowes decision serves as an important reminder to every contractor grappling with how best to respond to a solicitation containing seemingly unnecessary technical requirements. Don’t be afraid to ask “why” the specifications exist in the first place. If you receive an unsatisfactory answer from the Government, or if there isn’t adequate time to address your concerns before the solicitation’s closing date, don’t hesitate to pursue your legal remedies by filing a pre-award bid protest. As the GAO recognized, the Government is – of course – “entitled to great discretion in establishing its needs.” That said, the technical specifications designed to fulfill those needs must be both reasonable and grounded in fact. Otherwise, it’s all too easy for the Government to waste taxpayer dollars by conducting illogical acquisitions based on fabricated requirements.