Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest dismissed in part and denied in part.
1. Protest that agency improperly failed to make sole-source award to a service-disabled veteran-owned small business concern and impermissibly competed the acquisition on an unrestricted basis is dismissed where the protest was filed after award.
2. Protest alleging bias against protester and favoritism toward awardee is denied where record fails to support the protester’s allegations.
General Counsel P.C. Highlight:
CES argues that the VA failed to use its statutory authority to make sole-source awards to SDVOSB concerns. However, the challenge contained in both the agency-level protest and the protest to GAO is untimely; it relates to the terms of the competition that were known to the protester as early as March 17, when it received the agency’s email stating that the VA would proceed with the procurement on a sole-source basis. More specifically, prior to the issuance of the solicitation on an unrestricted basis, CES sought a sole-source award as an SDVOSB concern and the VA refused to make such award. Given that this acquisition was competed on an unrestricted basis, the protester was on notice when it submitted its offer that it would not receive the award on a sole-source basis, or be competing for this award under an SDVOSB set-aside. As a result, the protester’s post-award challenge is untimely and will not be considered.
CES next argues that the competition was not conducted on a fair and open basis because of favoritism towards Arjo. It is well-settled that government officials are presumed to act in good faith and GAO will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Where a protester alleges bias, it not only must provide credible evidence clearly demonstrating a bias against the protester or for the awardee, but also must demonstrate that this bias translated into action that unfairly affected the protester’s competitive position.
GAO’s review of the record shows no support for any alleged improper consideration of Arjo’s equipment. Specifically, the agency evaluators rated CES’s equipment unsatisfactory because it failed to meet the solicitation requirements (CES’s sensor devices did not work on all lifting devices or air assisted lateral transfer devices), and the protester has not shown that the actions it complains of, i.e., pilot testing of Arjo’s equipment, prejudiced the protester’s competitive position. In other words, since CES has not challenged any of the specific areas in which the VA found its equipment was unsatisfactory, there is no evidence that but for the agency’s actions, CES would have had a substantial chance of receiving the award. Regarding CES’s assertion that it has reason to believe that Arjo is a foreign company because of information the protester obtained from Arjo’s website, GAO has no basis to question the agency’s evaluation. Even if Arjo is a foreign-owned company–and CES correctly asserts that Arjo’s website shows that the company is headquartered in Sweden—GAO’s review of the entire record, including Arjo’s proposal, reveals that Arjo took no exception to the solicitation’s place of manufacture provisions. Thus, Arjo has represented that it will comply with the restrictions in the solicitation; should it later fail to comply with its representations, the matter will raise an issue of contract administration for the VA, up to and including a possible referral to the Department of Justice. Similarly, the protester’s allegations of a possible patent infringement in performance of this contract provide no basis to challenge the award to Arjo. The exclusive remedy for a patent holder who claims patent infringement by the government or by a government contractor who acts with the authorization or consent of the government is a suit against the government in the United States Court of Federal Claims. Thus, GAO will not consider this issue. The protest is dismissed in part and denied in part.