The GAO recently sustained a protest of the Forest Service’s solicitation for air tankers to fight wildfires because the solicitation unreasonably excluded large capacity aircraft. The solicitation stated that the maximum allowable volume of fire retardant on the aircraft that could be eligible for contracts was 5,000 gallons. GAO, however, found the agency had failed to justify this restriction, noting that prior solicitations did not contain any such limit.
The solicitation involved issuing contracts that would allow the agency to call for air tanker services, as needed, to fight wildfires nationwide. A company which owned a Boeing 747 air tanker that could hold up to 19,200 gallons of fire retardant challenged the solicitation as being unduly restrictive. See related story. Based on the documents provided by the agency, GAO was unable to determine that the restriction was necessary to meet the agency’s need. GAO specifically noted that it cost the agency nothing under the “call when needed” contracts to permit the larger air tankers to participate in the procurement given that the agency would only pay for those aircraft it actually ordered.
The GAO rejected all of the agency’s various defenses. For example, while the agency argued that the solicitation was for initial attack operations which the very large air tankers were not suited for, GAO found the solicitation specifically applied to both initial and extended attack operations. GAO also gave weight to the fact that the current solicitation deviated from prior ones, but the record contained no documents explaining the reason for the change. In addition, the agency asserted that large aircraft had caused damages in the past to airbases. GAO noted that the record showed that the accidents were “solely or primarily attributable to the actions of Forest Service personnel, not to the size of the aircraft.”
GAO recommended that the Forest Service make a written and supported determination of its needs and then revise the solicitation to include specifications consistent with those needs.
Protests at GAO are a relatively efficient way to challenge an agency’s decision related to procurements. More information about how to file a protest at GAO can be obtained here.