GAO decisions/Denied/Decided 17 Jun 2024
Active Deployment Systems, LLC
Incumbent advantage is not an unfair advantage
The procurement
CBP issued an RFQ under a DHS multiple-award BPA established under the GSA schedule (FAR 8.405-3) for a fixed-price task order to build and operate a temporary soft-sided detention facility for up to 1,125 detainees in North Eagle Pass, Texas, with a 30-day stand-up period, a 4-month base period and thirty-two 1-month option periods. Deployed Resources, LLC was performing the predecessor order. Active Deployment Systems (ADS), a small business, protested the RFQ's terms before quotations were due.
The protest
Under the RFQ, a non-incumbent winner had to mobilize a new encampment on undeveloped land across from the current site within 30 days, while the incumbent could keep using its existing facility. ADS argued that only the incumbent was effectively exempt from proposing a technical approach and cost for standing up a new camp in 30 days, which gave it an unfair competitive advantage and restricted competition.
The agency’s answer
CBP said an award to a non-incumbent requires a new facility on an adjacent site so that the old contractor's demobilization and dismantling do not overlap with the new contractor's mobilization, and so that CBP employees, contractors and detainees are not present in an active construction site. The short stand-up and month-to-month options reflected the need for continuity and flexibility in an unpredictable mission.
What decided it
An edge the incumbent earned by performing the prior order isn't unfair, and the new-site rule reflected CBP's real need.
GAO denied the protest. An incumbent's competitive advantage gained through performance of the incumbent contract is not unfair or improper absent evidence of preferential treatment or other improper action, and ADS showed none. The new-site and 30-day mobilization terms were rationally tied to CBP's need to avoid overlapping demolition and construction at an operating facility, and a requirement that is burdensome for a particular firm is not objectionable if it properly reflects the agency's needs. GAO also found that the solicitation as a whole gave vendors enough information to compete intelligently.
“An incumbent contractor's competitive advantage, which was gained by virtue of that contractor's performance on the incumbent contract, is not an unfair or improper competitive advantage.”
GAO, B-422424
For the file: You don't have to neutralize the incumbent's head start, but when a term plainly favors the incumbent, write down the operational reason for it. Here the health, safety and continuity rationale for building on a new site carried the requirement.
Authorities: FAR 8.405-3. Read the decision at GAO →
Facts are condensed from the published decision and the quote is verbatim; the takeaway is ours. Where GAO decided several grounds, only this one is described.
Could you have called it?
Protest! is the daily game: three real GAO decisions, both sides laid out. Rule sustain, deny or dismiss, then pick what decided it.
Play today’s Protest!