The Competition in Contracting Act (CICA) requires full and open competition in federal procurement unless one of the limited exceptions enumerated in the Federal Acquisition Regulation (FAR) part 6 applies. Meanwhile, the General Services Administration (GSA) Federal Supply Schedule (FSS) program provides the government with a streamlined process for acquiring commonly used commercial supplies and services. These simplified procedures notwithstanding, CICA’s competition mandate applies to procurements conducted under the FSS program. In this regard, the Government Accountability Office (GAO) has previously held that following the streamlined FSS procedures satisfies CICA’s competition requirements. It follows that when conflicting interpretations of a regulation governing competition in the FSS program are advanced, the interpretation consistent with the principles of CICA should prevail. One such long-recognized CICA principle provides that when concerns of administrative convenience or expediency are being weighed against ensuring full and open competition, the latter should be favored. Stated another way, mere administrative convenience or expediency should not provide a valid basis for restricting competition.

In B-423738, a decision issued on November 17, 2025, the GAO dismissed a bid protest challenging the government’s decision to issue an FSS request for quotation (RFQ) directly to select vendors but not the protester, even though the protester was a holder of the relevant schedule contract and capable of performing the requirements. On January 11, 2025, the United States Department of Agriculture (USDA) Rural Development division issued a request for information (RFI) to gauge industry interest in providing IT support services for the division’s business centers. The agency received responses from 40 businesses, all but one of which were 8(a) small businesses. On June 17, 2025, the agency issued the RFQ as a competitive 8(a) set-aside to establish an FSS blanket purchase agreement (BPA). Pursuant to FAR 8.405-3(b)(2)(v)(B), the agency sent the RFQ directly to four 8(a) vendors with FSS contracts. The agency did not send the RFQ to the protester, an 8(a) woman-owned small business and a FSS contract holder. A few days before the proposals were due, the protester contacted the agency to request a copy of the RFQ and to ask that the proposal submission deadline be extended. While the agency provided a copy of the RFQ, it denied the protester’s request for extension.

In the protest that followed, the protester argued that the agency had unreasonably limited competition by electing to send the RFQ to only four vendors. The protester took the position that the USDA should have either posted the RFQ on eBuy or sent it to more than four vendors, given the results of the agency’s market research. The agency maintained that FAR 8.405-3(b)(2)(v) gave it the discretion to either post the BPA solicitation on eBuy or send it directly to vendors. Notably, FAR 8.405-3(b), which provides the competitive procedures for establishing an FSS BPA, states in pertinent part under (2) that:

• “(v) If estimated value of the BPA exceeds the simplified acquisition threshold. The ordering activity contracting officer -
• (A) Shall post the RFQ on eBuy to afford all schedule contractors offering the required supplies or services under the appropriate multiple-award schedule an opportunity to submit a quote; or
• (B) Shall provide the RFQ, which includes the statement of work and evaluation criteria, to as many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that quotes will be received from at least three contractors that can fulfill the requirements. When fewer than three quotes are received from schedule contractors that can fulfill the requirements, the contracting officer shall document the file. The contracting officer shall prepare a written determination explaining that no additional contractors capable of fulfilling the requirements could be identified despite reasonable efforts to do so. The determination must clearly explain efforts made to obtain quotes from at least three schedule contractors.”

In rendering its decision, the GAO explained that since the word “practicable” in FAR 8.405-3(b)(2)(v)(B) is followed by an explanatory clause, its plain meaning had to be imported in the context of that clause. Thus, the number of schedule contractors that the agency would be required to practicably send the RFQ to would be determined by the results of the agency’s market research, such that the agency could “reasonably ensure that quotes will be received from at least three contractors that can fulfill the requirements.” Here, the USDA’s market research indicated that 39 8(a) small businesses were interested in the RFQ, at least five of which were definitely capable of meeting the requirement per the agency’s own determination during the pre-solicitation period. It follows that the agency should have sent the RFQ to at least those five businesses, in addition to a few others that, per the results of the government’s RFI, were likely capable of meeting the requirements. Such an approach would be consistent with the relevant FAR subsection, as it would reasonably ensure that quotes are received from at least three contractors capable of fulfilling the requirements. However, the GAO surprisingly concluded that the agency was reasonable in issuing the RFQ to only four vendors that it believed could meet its requirements.

In support of its decision, the GAO relied upon B-410640, a January 2015 bid protest, in which an incumbent contractor unsuccessfully challenged the procuring agency’s failure to provide it a solicitation for an FSS order. The relevant discussion in that protest concerned FAR subsection 8.405-2(c)(3)(iii)(B), much of the language of which is identical to FAR 8.405-3(b)(2)(v)(B) but contains competition requirements for proposed orders exceeding the simplified acquisition threshold (SAT), rather than BPAs. Specifically, that subsection contains procedures for an agency that elects not to post on e-Buy the solicitation for an FSS order over the SAT, and identical to FAR 8.405-3(b)(2)(v)(B), requires the agency to solicit “as many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that quotes will be received from at least three contractors that can fulfill the requirements.”

As a notable distinction in that post-award protest, however, the GAO determined that the agency had met the competition requirements of the regulation because it had solicited 14 vendors and received six quotations. Meanwhile, in the present case B-423738, no award was made as of the date of the GAO’s decision, and it is not clear whether the agency received quotations from three or all four solicited contractors. Since the agency only solicited four out of the 39 8(a) small businesses that initially expressed interest in the procurement, if only two of the solicited vendors decide not to participate in the procurement, the government would receive quotations from fewer than the three contractors contemplated by the regulation. Notably, the GAO only cited B-410640 in support of its determination that the agency had solicited an appropriate number of contractors. However, in that case, the agency had sent the solicitation to a significantly larger number of contractors, and even then, more than half of the solicited contractors (8 out of 14) opted not to submit quotations.

Furthermore, the primary focus of B-410640 was the protester’s allegations that it was entitled to receive a solicitation as the incumbent contractor, notwithstanding its poor performance record on the previous contract. In response, the GAO correctly concluded that an FSS vendor had no legal expectation or entitlement to be a solicited vendor merely because it was the incumbent contractor. In contrast, in the present case, the small number of contractors directly solicited under the procedures of FAR 8.405-3(b)(2)(v)(B) relative to the number of contractors that expressed interest in the January 2025 RFI was raised as an issue. Also at issue was the agency’s decision to directly solicit fewer contractors than were capable of fulfilling the requirements, per its own assessment. In other words, although the two cases applied identical regulatory language, they presented key factual differences. Finally, it is worth highlighting that, despite the much larger number of contractors solicited in B-410640, the GAO expressed serious concerns about the agency’s decision not to solicit the incumbent contractor.

Returning once again to the recent decision in B-423738, the GAO should have determined that if the agency opted not to post the RFQ on e-Buy, it should have at least solicited the five 8(a) small businesses that were deemed capable of performing the contract as a result of the agency’s own market research. The language in the regulation, “consistent with market research appropriate to the circumstances,” requires the agency to make a determination regarding the number of contractors to be solicited on a case-by-case basis. Therefore, at a minimum, the agency should have been asked to explain its decision to selectively not solicit the fifth contractor under the circumstances of the current procurement. Even in soliciting the five small businesses deemed capable of performing the contract, the agency would run the risk of excluding qualified schedule contractors that failed to adequately respond to the RFI or gained the capabilities to fulfill the government’s requirements after responding to the RFI. Still, there would be a somewhat larger pool of contractors to help the agency reasonably ensure that quotes are received from at least three contractors that can fulfill the requirements. Ideally, the agency should have followed the procedures in FAR 8.405-3(b)(2)(v)(A), posted the RFQ on e-Buy, and avoided the protest altogether by giving all schedule contractors that offer the required services an opportunity to submit a quotation. However, even if it followed the procedures of FAR 8.405-3(b)(2)(v)(B), as is its prerogative, it would seem from a review of the GAO decision that the agency should have solicited more than four contractors under the circumstances to satisfy the competition regulations.

The USDA also did not provide reasons or rationale tying its procurement objectives to its decision to restrict the competition to only the four directly solicited vendors. Instead, in support of its decision, the agency only advanced a conclusory statement that it had the discretion to do so under the FSS program regulations. Meanwhile, the facts as stated could easily suggest that the agency’s decision to solicit only four vendors was inconsistent with its market research and not appropriate to the circumstances. After all, the government received 40 responses to its January 2025 RFI, 39 of which were 8(a) vendors. Additionally, the government’s own market research indicated that at least five of those vendors could definitely fulfill the government’s requirements, and no reasons were provided for selectively excluding the fifth contractor. If quotations are received from fewer than three contractors, it is not difficult to imagine that the government would have a hard time explaining why it was unable to identify additional contractors capable of fulfilling the requirements, especially when at least five capable contractors were identified during the market research. Notably, FAR 8.405-3(b)(2)(v)(B) requires that the contracting officer provide such an explanation in the form of a written determination when fewer than three quotations are received. Furthermore, that written determination must clearly state that no additional contractors capable of performing the requirements could be identified despite the agency’s reasonable efforts and must also clearly describe those efforts. In the present protest, the agency should have at least provided some supporting rationale for its decision to send the RFQ directly to only four vendors.

To the extent that the USDA determined that it was administratively burdensome or impractical to evaluate a potentially large number of proposals for this requirement, it is worth noting that agencies may not restrict competition merely for administrative convenience or expediency. While the decision indicates that the protester did not advance any such arguments, the lack of any other explanation from the agency would suggest that administrative convenience may have been the reason behind the agency’s decision to send the RFQ directly to a subset of FSS contractors, presumably interested in and deemed capable of performing the requirements. Of course, we assume as we must, that the agency acted in good faith throughout the procurement. However, the protester may have missed an opportunity to understand the rationale behind the agency’s decision by failing to advance an argument that the agency’s decision was motivated merely by administrative convenience. Similarly, the GAO may have also missed this opportunity by determining based on the agency’s conclusory statements alone that it had the necessary discretion under FAR 8.405-3(b)(2)(v)(B) to solicit only four vendors when the regulation requires agencies to make a determination on the number of contractors to be solicited on a case-by-case basis. Such an interpretation becomes even more apparent when considering that the plain language of the regulation requires the agency to “reasonably ensure that quotes will be received from at least three contractors,” as opposed to just requiring the agency to directly solicit three or more capable contractors.

While the FSS program provides the government with streamlined acquisition procedures, CICA’s competition mandate still applies. In this connection, GAO has previously held that the government satisfies CICA’s competition requirements by following the procedures of the FSS program. In the FSS program regulations discussed above, agencies are required to determine the number of contractors to be directly solicited by evaluating the unique circumstances of each procurement. Such an interpretation aligns with CICA and precludes a bright-line rule that would allow agencies to simply solicit three or more capable vendors under any circumstances. Agencies may also not selectively exclude certain contractors from participating in a procurement solely for administrative convenience. Considering the current administration’s efforts to further streamline procurement processes, including the increased utilization of the FSS program, it is vital that, in the face of conflicting interpretations of the FSS program’s competition regulations, the interpretation consistent with the principles of CICA prevail. The GAO has a long precedent of recognizing that full and open competition should be favored over concerns of administrative convenience or expediency. Therefore, even in procurements under the FSS program, mere administrative convenience should not provide agencies a valid basis for restricting competition beyond what is considered reasonable under the program’s regulations. In this regard, contractors should closely monitor challenges to agency decisions and actions that unduly restrict competition, especially those based solely on administrative convenience or expediency.

This Bid Protest Insight is provided as 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.