Pre and Post Award Bid Protest

GAO Protest-Debarment and Compelling Reason

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In a Government Accountability Office (GAO) protest, the GAO determines that debarment issues do not fall within its jurisdiction. In the Matter of: Aria Target Logistics Services (ATL) brought a bid protest, alleging that the Agency, the Department of the Air Force, failed to consider whether a compelling reason existed to award a contract despite ATL being placed on a list of companies recommended for disbarment.

Disbarment Issues

The Air Force had excluded ATL's proposal because of the company's inclusion on that list. The solicitations that ATL protested, sought proposals for  contracts to furnish trucking services. The first request for proposals (RFP) contemplated award of approximately 12 contracts for each of three suites: bulk fuel, dry cargo, and heavy cargo. The second contemplated award of contracts for trucking services in three regions: south, north, and west.  While ATL’s proposals were deemed acceptable under two of the RFPs, the company's proposals were eliminated from the competitive range in both procurements, because ATL’s name had been placed on the exclusion list in the System for Award Management (SAM) because the Air Force had proposed that it be debarred from federal government contracting, making it ineligible to receive contracts.


It making its determination, the GAO noted that the Federal Acquisition Regulation (FAR) § 9.405 provides in pertinent part:

(a) Contractors debarred, suspended, or proposed for debarment are excluded from receiving contracts, and agencies shall not solicit offers from, award contracts to, or consent to subcontracts with these contractors, unless the agency head determines that there is a compelling reason for such action . . . . FAR § 9.405(a).

ATL first protested on the basis that because its proposals were acceptable, they should be included in the competitive range for both procurements.  ATL stipulated that it had been proposed for debarment, but disputed the basis for its proposed debarment. ATL also asserted that the agency either failed to make a determination whether there was a compelling reason to award it contracts, despite its proposed debarment, or in the alternative unreasonably determined that a compelling reason did not exist. The GAO first determined that the case did not fall in its jurisdiction as it did not review protests regarding whether an agency improperly suspended or debarred a contractor.  Rather, the GAO ruled, the proper forum for this protest was with the agency that proposed debarment.  As to ATL's claim that the Air Force failed to find a compelling reason to consider ATL's proposal for award, the GAO responded that the FAR did not require an agency to make this consideration before excluding a contractor's offer.  Rather, the FAR, according to the GAO, allowed the agency head to make such a determination.


About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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