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GAO Decision – CWTSatoTravel (B-404479.2, April 22, 2011)


Link to the case:   http://www.gao.gov/decisions/bidpro/4044792.htm


1. Protest that solicitation seeking fixed prices for electronic travel management service imposes excessive risk on offerors is denied where solicitation does not have an unlimited scope of work and provides sufficient information on which offerors can base their prices.

2. Protest that solicitation requirements for updates to electronic travel management system in response to changes in pertinent federal regulations and policy are unduly restrictive is denied where agency establishes that requirements are reasonably related to agency's needs.

3. Protest that agency improperly conducted procurement using commercial item procedures and policies is denied where protester does not show that use of those procedures and policies will cause it competitive prejudice.

4. Protest that certain terms of solicitation do not clearly communicate whether objectives are optional or required--rendering solicitation ambiguous--is sustained; remaining challenges to terms of solicitation are denied where those terms were not susceptible to more than one reasonable interpretation, and where solicitation contained sufficient information to allow offerors to compete intelligently and on a relatively equal basis.


CW Government Travel, Inc., d/b/a CWTSatoTravel, of Arlington, Virginia, protests the terms of request for proposals (RFP) No. QMAD-JM-100001-N, issued by the General Services Administration (GSA) for an end-to-end travel management service that automates and consolidates federal travel processes in a secure, web-based environment.

We deny the protest in part and sustain it in part.

Commentary:   Pasted below is what I found most interesting in this case.  Basically, GAO is saying they won’t question the use of commercial terms and conditions by an agency as long as one or more of the contractors are not placed at a “competitive disadvantage.”  The burden is on them to prove that disadvantage.  I would interpret this to mean we can continue to broadly construe the “services of a type” concept when applied to commercial acquisitions in general and the Schedules in particular.  Anyone have more to add or perhaps a contrarian opinion?


Commercial Item Terms

CWT contends that the agency improperly utilized FAR policies and procedures for the acquisition of commercial items and services. Protest at 7. As stated above, the solicitation incorporated several provisions that the FAR prescribes for use in acquisitions of commercial items or services. RFP sections D.1--D.3, E.1, F.1. CWT does not take issue with the use of these provisions. Rather, CWT asserts that the solicitation incorporates terms that CWT believes are not commercial in nature or customary in the travel services industry. Protest at 9-10; Comments at 14. On this basis CWT challenges, among others, the provisions that require: fixed prices over a period of up to fifteen years, including options, Comments at 17-20; compliance with federal IT security requirements, id. at 20-22; accommodation of customer agency TMCs, id. at 23-26; and alignment of the ETS2 system with the FEA framework, id. at 26-27.

Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. Armorworks Enters., LLC, B-400394.3, Mar. 31, 2009, 2009 CPD para. 79 at 3; Cogent Sys., Inc., B-295990.4, B-295990.5, Oct. 6, 2005, 2005 CPD para. 179 at 10. In the context of a protest challenging the terms of a solicitation, competitive prejudice occurs where the challenged terms place the protester at a competitive disadvantage or otherwise affect the protester's ability to compete. Pond Sec. Group Italia JV-Costs, B-400149.2, Mar. 19, 2009, 2009 CPD para. 61 at 4; Crane & Co., Inc., B-297398, Jan. 18, 2006, 2006 CPD para. 22 at 9. With respect to a procurement for services that allegedly do not meet the definition of a commercial item, our Office will deny a protest where the protester does not claim that any of the provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, and does not show that the use of commercial item procedures otherwise prejudiced the protester's competitive position. Global Solutions Network, Inc., B-298682, Nov. 27, 2006, 2006 CPD para. 179 at 3; Johnson Controls World Servs., Inc., B-285144, July 6, 2000, 2000 CPD para. 108 at 3.

Here, CWT does not claim that any of the provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, nor has CWT shown that the use of commercial item provisions or procedures otherwise prejudices the firm's competitive position. Because CWT has not demonstrated that the firm was prejudiced by the agency's use of commercial item procedures, and prejudice is not otherwise apparent from the record, we deny this ground of protest. See Global Solutions Network, Inc., supra; Johnson Controls World Servs., Inc., supra.


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