Procuring agencies have wide latitude in developing requirements for their solicitations. When provisions are challenged, the U.S. Government Accountability Office (“GAO”) merely evaluates whether the agency’s justification for the requirement at issue is rational and can withstand logical scrutiny. However, there are limits to the agency’s discretion. Agencies may not include requirements in solicitations that are unduly restrictive. Specifically, 10 U.S.C. § 2305(a)(1)(B)(ii) provides that agencies may include restrictive provisions “only to the extent necessary to satisfy the need of the agency or as authorized by law.”
A recent example of a challenge based upon that limitation is AES UXO, LLC, B419150, Dec. 7, 2020, in which an offeror challenged a solicitation’s relevant experience and past performance evaluation criteria. The solicitation at issue sought proposals for unexploded ordnance clearing services. The solicitation contained a provision that, as written, required that responding offerors must demonstrate previous experience at the prime contractor level or as a member of a joint venture. The solicitation precluded offerors from meeting the relevant experience and past performance requirements with work performed at the subcontractor level.
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