Protests alleging the government’s violation of the Competition in Contracting Act’s (CICA) full and open competition mandate may be styled in various forms, with allegations of improper competition restrictions varying depending on the specific circumstances of the procurement. Despite this, to be successful, the protestor’s allegations must always be factually and legally sufficient. Protestors may face difficulties providing a sound factual or legal basis for their protests when challenging the classified status of a procurement, especially when they do not have access to the solicitation. Bid protest adjudicative forums, such as the Government Accountability Office (GAO), will typically dismiss protests lacking such support by citing speculation, factual inaccuracies, or flawed legal assumptions. Notably, when rejecting such protests, the GAO does not require the government to submit an agency report, further disincentivizing protestors from filing such protests.
In B-422653, a decision issued on August 6, 2024, the GAO dismissed such a bid protest for failing to state a valid legal or factual basis. The protest challenged the “classified” status of a request for proposal (RFP) issued by the Department of Energy (DOE) for the procurement of intelligence and counterintelligence services. The protestor, a service-disabled veteran-owned small business (SDVOSB), essentially asserted that the DOE’s issuance of a classified RFP for the subject procurement made it unduly restrictive of competition. The protestor discovered the existence of the classified solicitation when it came across the name of its RFP on a National Reconnaissance Office (NRO) website. Since the RFP was only available by accessing the NRO’s Joint Worldwide Intelligence Communication System (JWICS), the protestor emailed the NRO to request an unclassified version of the RFP. Since JWICS is a secure intranet system that hosts classified information, accessing JWICS requires a sensitive compartmented information facility (SCIF), which the protestor did not possess. When the agency refused to provide the sanitized version of the RFP, the protestor filed a protest with the GAO, alleging a lack of full and open competition in violation of CICA.
In presenting its protest arguments, the protestor contended that it had previously provided the same counterintelligence services to other federal agencies. According to the protestor, the agencies had issued unclassified solicitations for the same work on those occasions. Therefore, the protestor alleged that the DOE had no legitimate reason for issuing a classified RFP in this instance. The protestor also argued that the procurement was unduly restrictive because, due to its classified nature, it excluded otherwise qualified competitors, such as the protestor. In response, the agency filed a request for dismissal before the agency report was due. In its request for dismissal, the DOE claimed that it had issued the RFP on a classified basis in the interests of national security. The DOE further explained that the procurement required a classified RFP so the agency could include details of the counterintelligence program when describing the scope of work to qualified offerors. The DOE argued that the protest should be dismissed because the protestor’s claims were without any factual or legal basis beyond the protestor’s opinion and speculation.
In dismissing the protest, the GAO determined that the protestor failed to provide a valid factual or legal basis for its claims that the RFP did not need to be classified. The GAO explained that the protestor had not read the RFP because the protestor did not have access to the RFP. Since the protestor had not read the RFP, it could not know its terms. Thus, without knowing the terms of the RFP, the protestor’s claims that the RFP could be issued on an unclassified basis were mere speculation and without factual support. In denying the protestor’s request that the RFP be made available as an unclassified document, the GAO clarified that it could not review an agency’s national security interests determination to grant the protestor access to classified information. In support, the GAO pointed to a previous decision where it had refused to review the government’s decision on whether to grant a firm security clearance for a particular acquisition.
To succeed in protests that allege violations of CICA’s full and open mandate, protestors must demonstrate that the requirements they claim are unduly restrictive do not reflect the agency’s actual needs. Additionally, allegations of improper competition restrictions must be factually and legally supported. Such factual and legal support typically requires the protestor to have access to the terms of the solicitation. As demonstrated in this case, mere speculation that the government does not need to issue a classified RFP without a sound factual basis of support will be insufficient to sustain a protest – even if similar requirements have been issued on an unclassified basis in the past. Similarly, arguments asserting improper exclusion from competition due to lack of adequate facility clearance are subject to dismissal unless the protestor can demonstrate that the clearance requirements are not reflective of the government’s actual procurement needs.
This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
