Protest of EPA Competitive Procurement Procedures

B-203086: Aug 24, 1981

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An association protested the use of competitive procedures under a request for proposals (RFP) issued by the Environmental Protection Agency (EPA). The RFP was for assistance in the EPA investigation of groundwater pollution at hazardous waste sites. The protester contended that the RFP required the services of a licensed engineer and that the selection method for the procurement of architectural and engineering (A-E) services under the Brooks Act should have been used. The Act states that it is the Federal Government's policy to publicly announce all requirements for A-E services and to negotiate contracts for these services on the basis of demonstrated competence and qualification and without price competition. EPA reported that it determined that the services in question could be performed by someone other than an engineer and that, therefore, that the Act procedures did not apply. The protester argued that the technical background needed to provide the required services was the type of background which was likely to be possessed by an engineer and that EPA should have solicited engineering services even if the agency did not intend to so indicate in the RFP. GAO believed that the determination of whether the Act should apply to a particular procurement must be based upon circumstances of the work to be done and the needs of the agency involved. This determination is primarily the responsibility of the procuring activity, not GAO. Therefore, GAO will not question an agency's decision not to require an engineer for a particular service unless the protester shows that the determination was unreasonable. The protester had not shown that the EPA decision that a licensed engineer was not needed for these services was unreasonable. In fact, the protester did not argue that the Act requires that the services be performd by a professional engineer, but rather that it would be prudent for EPA to require a professional engineer because, in the protester's view, a professional engineer would be more likely to meet the needs of EPA. In this respect, the protester's assertion that the technical background required to perform some of the functions involved was the same as that possessed by a professional engineer was not at all inconsistent with the view of EPA that persons who were not engineers could perform the required services. Accordingly, the protest was denied.

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