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Overly Restrictive Requirements


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I thought it was written in the FAR, that it was prohibited and even unlawful, to draft a scope of work / performance specification documents, in a manner that the would limit or restrict competition.

Example: Drafting a scope of work and or performance specifications exceeding actual needs, and is such a way that to as to essentially ensure that a favored contractor would be successful.

or

Drafing the requirements for a Widget so closely to a particular manufacturers Widget that no other manufacturer's widget could meet the requirement.

I could not find words to that effect in the FAR. Can someone point me to the right section please?

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Guest Vern Edwards

See FAR 11.002(a)(1)(ii): "Only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law."

See, however, the U.S. Court of Federal Claims' decision, Savantage Financial Services, Inc. v. U.S., 86 Fed. Cl. 700, 704 (2009):

Relevantly, FAR 6.101(B) requires that contracting officers use competitive procedures “that are best suited to the circumstances of the contract action and consistent with the need to fulfill the Government's requirements efficiently.” 48 C.F.R. ? 6.101(B) (2009). Restrictive provisions are permissible, but only “to the extent necessary to satisfy the needs of the agency or as authorized by law.” Id. ? 11.002(a)(1)(ii) (2009). Moreover, “[t]he determination of an agency's minimum needs ‘is a matter within the broad discretion of agency officials ... and is not for this court to second guess.’ ” CHE Consulting, Inc. v. United States, 74 Fed.Cl. 742, 747 (2006) (quoting Wit Assocs., Inc. v. United States, 62 Fed.Cl. 657, 662 (2004)). Nonetheless, where there is no rational basis for an agency's decision, or there was a violation of an applicable regulation or procedure, the court may find such decision to be arbitrary and capricious. Id. at 746 (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir.2001)). Accordingly, the protestor must demonstrate that there was no rational basis for the agency's decision. Id. at 746.

See also the GAO's recent decision, COB EventLizenz GmbH, B-401999.2, Jan. 12, 2010, 2010 CPD ? 24 at 2:

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 47C LLC, B–286324, B–286324.2, Dec. 26, 2000, 2001 CPD ? 44 at 7. In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1) (2006); Innovative Refrigeration Concepts, B–272370, Sept. 30, 1996, 96–2 CPD ? 127 at 3. Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick–Helmuth Co., Inc., B–279621.2, Aug. 17, 1998, 98–2 CPD ? 44 at 3. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B–295356, Feb. 8, 2005, 2005 CPD ? 34 at 4. Where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., B–293644.6 et al. , July 29, 2004, 2004 CPD ? 146 at 3.
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