Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
General Counsel P.C. Highlight:
GAO denied the protest of Blue Ridge Limousine and Tour Service, Inc., based on the terms of a solicitation for shuttle bus services in the Arlington, Virginia area, issued by the National Guard Bureau (NGB).
NGB originally awarded Blue Ridge a contract under the Small Business Administration’s (SBA) section 8(a) program for the provision of shuttle bus services. The contract provided for a base year and four one-year option periods. Subsequently, after the requirement had grown from $100,000/year to $2.5 million/year, the agency sought to modify the contract, but couldn’t because of computer problems at NGB. Because of the computer problems and the urgency to pay Blue Ridge funds for past invoices, a new contract was issued. The contract was identified as an 8(a) contract.
Blue Ridge graduated from the 8(a) program prior to the execution of the contract and thus, was ineligible to receive a new 8(a) contract. The Army contacted the SBA to obtain approval for the modification, which it received. NGB then sent an offer letter to the SBA requesting that the follow-on shuttle bus services requirement be accepted in the 8(a) program as a competitive procurement, which it accepted. Blue Ridge protested the decision to set the solicitation aside for 8(a) certified concerns and the agency took corrective action. However, NGB sent the SBA a new 8(a) offer letter, which the SBA accepted.
Blue Ridge argued that the solicitation was improperly set aside as an 8(a) competition because the SBA failed to perform an adverse impact analysis under 13 C.F.R. § 124.504(c). Blue Ridge also argues that it was adversely impacted by the decision to set aside the solicitation as an 8(a) award, given that it is a small business, but is no longer a certified 8(a) contractor. GAO noted that under the circumstances, and, given the deference accorded the SBA’s interpretation of its regulations, GAO found the SBA’s determination–i.e., that the current solicitation is a follow-on to the previous contracts to obtain these services under the 8(a) program, and, is thus subject to the “once 8(a), always 8(a)” rule–is not inconsistent with applicable SBA regulations. In this regard, the pertinent regulation provides, “where a procurement is awarded as an 8(a) contract, its follow-on or renewable acquisition must remain in the 8(a) . . . program unless the SBA agrees to release it for non-8(a) competition.” For procurements covered by this regulation, no adverse impact analysis was required and GAO could not find the SBA’s position in this regard to be inconsistent with applicable regulations.