Solicitation Requirement that Could Be Satisfied with “Prudent Business Planning” Is Not Unreasonable; SHABA Contracting, GAO B-417934

Protest challenging the terms of a solicitation is denied. The solicitation required offerors proposing H-2B workers to provide certificates issued by the Department of Labor. The protester contended that the solicitation did not allow offerors enough time to obtain certificates. GAO found, however, that with shrewd business planning, an offeror could obtain a certificate before the proposal deadline.

The Department of Agriculture issued a solicitation for tree cutting services. The solicitation required that any offerors supplying workers under the H-2B Program had to provide a Temporary Employment Certificate issued by the Department of Labor. SHABA Contracting filed a protest challenging the certification requirement. SHABA contended that the process of obtaining a Temporary Work Certificate from DOL takes 120 days. The solicitation, however, was only open for 32 days. Thus, SHABA argued, offerors did not have enough time to obtain the certificates.

GAO, however, accepted the agency’s rationale for this time frame. Due to the repetitive and seasonal nature of the work, a potential offeror could review previous years’ requirements and apply for employment certificates when DOL opens the application process. Indeed, each year, the Department of Agriculture publishes an acquisition plan that identifies the types of projects it envisions for the year. With some prudent business planning, offerors could easily obtain the necessary certifications before the deadline for proposals.

SHABA is represented by Hadley Gross. The agency is represented by Azine Farzami of the Department of Agriculture. GAO attorneys Uri R. Yoo and Laura Eyester participated in the preparation of the decision.

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