Monday, November 25, 2019

Specialized Experience Requirement does not Unduly Restrict Competition

The State Department issued a solicitation for a 'personal services contractor' to serve as the Justice Adviser to support the Bureau of International Narcotics and Law Enforcement Affairs (INL) in Costa Rica. The solicitation required that applicants have a law degree from an American Bar Association (ABA) accredited law school plus two years of work experience as a lawyer or judge.

The solicitation was challenged by an individual who maintained that the law degree and work experience requirements were unduly restrictive of competition. The protester's argument went something like this:

  1. There is little correlation between being a lawyer with two years of legal work experience and successful performance of the Justice Adviser requirement.
  2. The solicitation does not require the awardee to practice law or litigate cases
  3. The State Department's position that only a lawyer can perform the work with the "requisite gravitas" is illogical.
  4. A non-lawyer with "deep justice sector experience and ability" can also be successful.

The State Department had answers for all of these contentions but essentially argued that its minimum qualifications were reasonably necessary because the successful candidate should have the same credentials as the lawyers, prosecutors, and judges who the advisor will be mentoring, training, and advising. The advisor will be working directly with prosecutors and judges in case-based mentoring and acting as a subject matter expert. Further, the law degree ensures experience in the rule of law continuum, from education to professional accreditation, to practice and provide a backdrop for making recommendations and planning.

The Comptroller General handling the appeal concluded that the State Department articulated a reasonable basis for the law degree and experience requirement. A requirement for specialized experience is not unduly restrictive of competition where an agency reasonably concludes that the experience is necessary for the performance of the agency's requirements.

No comments:

Post a Comment