## Facts

- FEMA issued Solicitation No. HSFEHQ-09-R-0105 as a combined synopsis/solicitation under FAR subpart 12.6 for commercial items.
- The procurement sought alternative housing units (AHUs) for disaster victims through multiple-award, fixed-price IDIQ contracts.
- The SOW anticipated units that could endure extended travel, repeated installation/deactivation, and extreme weather conditions, and permitted various unit types (e.g., manufactured, modular, panelized, and other alternative units).
- The SOW imposed indoor air quality requirements, including that indoor formaldehyde levels be less than 0.016 ppm prior to government acceptance at the manufacturing plant.
- The solicitation was issued August 19, 2009, with proposals due September 10, 2009 (22 days).
- GIBBCO filed a pre-award protest arguing (1) the requirement was not properly treated as a commercial-item acquisition, and (2) offerors were entitled to at least 30 days to submit proposals.
- FEMA responded that market research and prior procurements showed commercially available units could meet the specifications with only minor modifications, and that similar units had been acquired previously using commercial-item procedures.

## Issues

1. Whether FEMA reasonably used FAR subpart 12.6 commercial-item procedures for AHUs subject to specified air quality and performance requirements.
2. Whether, in a FAR subpart 12.6 procurement, FEMA was required to allow at least 30 days for proposal submission, and whether 22 days was unreasonable.

## Decision

- GAO denied the protest.
- GAO found FEMA reasonably determined the solicited AHUs were commercial items for purposes of using FAR subpart 12.6.
- GAO rejected the claim that a 30-day minimum applied and held FEMA needed only to provide a reasonable opportunity to respond.
- GAO concluded the 22-day response period was reasonable under the circumstances.

## Legal Principles

- An agency may use FAR part 12 commercial-item procedures where its determination that the requirement can be met by commercial items (including with minor modifications) is reasonable and supported by the record, including market research and procurement history.
- In acquisitions conducted under FAR subpart 12.6 streamlined commercial-item procedures, the agency is not required to provide a fixed 30-day proposal period; it must provide offerors a reasonable opportunity to respond.
- GAO will not sustain a protest challenging solicitation terms where the agency’s judgments (commercial-item classification and response time) are reasonable and consistent with applicable procurement rules.

## Conclusion

GAO upheld FEMA’s solicitation as a proper commercial-item acquisition under FAR subpart 12.6 and held that the 22-day proposal period provided a reasonable opportunity to respond, denying GIBBCO’s pre-award challenge in full.


Matter of GIBBCO LLC, B-401890, 2009 WL 4810593 (Comp. Gen. Dec. 14, 2009)