Government Solicitation Did Not Meet Minimum Standards

The Bureau of Indian Affairs (BIA) issued a solicitation, using simplified acquisition procedures, to supply diesel fuel to a Navajo District school (Mariano Lake Community School). The procurement was set aside for Indian small business economic enterprises (ISBEE). When the Government uses simplified acquisition procedures, it is not required to use full and open competition to conduct the procurement. Instead, the Government is required to promote competition to the maximum extent practicable. Typically, this means posting the notice in a public place at the contracting office for at least 10 days. Beyond that, the Government must also conduct the procurement consistent with a concern for fair and equitable competition. So, for example, a contracting officer cannot solicit one source and fail to properly post a notification.

Due to the urgent nature of the diesel fuel, the contracting officer sent the solicitation to three identified eligible firms on Saturday with a proposal due date the following Monday. The contracting officer also placed a copy of the solicitation in a three-ring binder kept at the reception desk in the contracting office. By Monday, two bids were received and award was made to the lowest bidder.

Bluehorse Corporation found out about the solicitation six days after the contract had been awarded and filed a Comptroller General (CG) bid protest. Bluehorse argued that the contracting officer had failed to publicize the requirement properly, which effectively excluded it from competition.

The CG sustained the protest. The CG ruled that BIA's actions fell short of the minimum standards for obtaining maximum practicable competition when using simplified acquisition procedures with respect to both publication of the requirements and soliciting sources. "We do not regard the Saturday placement of the solicitation in a binder, in an office that was effectively closed to the public on a weekend for quotations that were due by 2 p.m. on Monday, as meeting the requirement for public posting. Further, the contracting officer's decision to contact one source that was plainly unlikely to supply diesel fuel, leaving only two sources that could, does not meet the guideline of soliciting at least three sources to promote competition to the maximum extent practicable."

BIA was instructed to re-solicit the requirement and pay Bluehorse reasonable costs for filing and pursuing its protest (including reasonable attorney fees).

You can read the entire GAO decision here.