November 2017 Bid Protest Roundup

his roundup of interesting bid protest decisions issued in November 2017 highlights two decisions, both at the Government Accountability Office ("GAO"). The first reminds contractors that competitors can work together when failing to do so will result in bad procurement precedence that will cause them future competitive harm. The second reminds contractors that it may be ill advised to rely on industry day materials, especially if marked that they are subject to change. This decision also shows that, between an original contract and a bridge contract, the original contract is more important in the Small Business Administration's analysis of whether the award of an 8(a) contract will harm a small business.

Global SuperTanker Services, LLC, B-414987; B-414987.2, November 6, 2017 Global SuperTanker Services, LLC ("GSTS"), a provider of very large air tankers used to fight fires, successfully challenged the terms of a solicitation that excluded it from the competition. The Department of Agriculture, Forest Service (the "Agency") sought to enter into a "call when needed" basic ordering agreement with contractors for air tanker services. Under a "call when needed" agreement, the Agency would issue orders to one or more contractors, each of which would decide whether it will accept the order. This type of contract allows the Agency to have several contractors available to provide firefighting services in emergencies at predetermined rates.

The solicitation was for both the initial and extended attack phases of wildland firefighting and included a requirement that the proposed air tankers must have a minimum tank capacity of 3,000 gallons of retardant and a maximum capacity of 5,000 gallons. GSTS's air tanker had a capacity of up to 19,200 gallons of retardant. The Agency contended that for a variety of reasons, tankers with a capacity greater than 5,000 gallons were not suitable for deployment in the initial attack phase of firefighting operations. The Agency claimed that as the solicitation was for both initial and extended attack services, if the tankers were not suitable for the initial attack phase, GSTS was not qualified to compete for the contract.

The GAO examined all of the reasons presented by the Agency and was not persuaded. Not only did GAO disagree with the claim that the excess capacity tankers were unsuitable for the initial attack phase operations, but GAO also disagreed that even if true, this did not qualify GSTS from performing...