Bid Protest: Unreasonable and Ambiguous Solicitation Terms Sink Procurements

The term “bid protest” typically calls to mind challenges to an agency’s award of a contract.  But two recent GAO sustain decisions—Wilson 5 Service Company, Inc., B-422670, Sept. 25, 2024, 2024 CPD ¶ 230 and MAXIMUS Federal Services, Inc., B-422676, Sept. 16, 2024, 2024 CPD ¶ 222—highlight another impactful tool for protecting a contractor’s ability to compete fairly: pre-award challenges to ambiguous or unreasonably restrictive solicitation terms.

In Wilson 5, GAO sustained a pre-award protest challenging unduly restrictive solicitation terms.  The General Services Administration (GSA) issued a solicitation for facilities maintenance services throughout the state of Georgia requiring offerors to demonstrate prior experience servicing multiple facilities geographically dispersed from one another—meaning at least 200 miles between them—under the same contract.  The solicitation was unequivocal that the failure to meet these requirements would be viewed “as an unfavorable aspect of the offeror’s quote.”  Wilson 5 challenged the 200-mile threshold and the requirement to demonstrate “multiple locations under the same contract” as unduly restrictive of competition.  (As we recently explained, the “unduly restrictive of competition” argument functions as a catch-all solicitation challenge when a protester believes that the terms of a solicitation restrict or impede competition in an improper way.)  Here, Wilson 5 argued that it was the incumbent service provider for multiple locations located less than 200 miles apart and that offerors should be able demonstrate experience servicing multiple locations on concurrent contracts.  GAO agreed, finding that the agency failed to justify utilizing restrictive solicitation requirements that limited competition.  GSA offered no explanation for penalizing offerors submitting relevant experience performed under separate but concurrent contracts instead of the same contract; moreover, nearly 60% of the facilities were not 200 miles apart thus undercutting the reasonableness of the 200‑mile cutoff.  As a result, GAO sustained the protest and recommended GSA revise the solicitation to reflect its needs.

In MAXIMUS, a protester successfully challenged an agency’s use of ambiguous solicitation terms.  As part of a Centers for Medicare and Medicaid Services (CMS) solicitation to procure contact center operations support services, CMS included a “labor harmony agreement” (LHA) requirement to avoid labor strikes during performance.  The LHA clause required the successful contractor to, among other things, “negotiate and provide a copy of [an] LHA prior to an award being formalized if there has been demonstrated intent to represent its employees prior to contract award” but did not define the length of time the successful offeror would have to negotiate a pre-award LHA.  MAXIMUS, a potential offeror, challenged the LHA clause as ambiguous; GAO agreed.  In sustaining the protest, GAO explained that the solicitation requirement was vague and that other sections of the solicitation also failed to resolve the ambiguity surrounding the length of the negotiating period.  Here, as well, GAO instructed CMS to revise the solicitation terms to clarify the timeframe for negotiating a pre-award LHA.