Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: SDVO; SBA Status protest
General Counsel P.C. Highlight: Because the agency’s decision not to consider a previously disqualified SDVOSBC eligible for award was consistent with prior SBA policy, the VA’s exclusion of the contractor from award was upheld and the protest was denied.
Combined Effort, Inc. (CEI) protests the rejections of its proposal under a request for proposals (RFP) issued by the Department of Veterans Affairs (VA) for general construction and other services.
The VA issued the RFP as a set-aside for service-disabled veteran-owned small business concerns (SDVOSBC). CEI submitted its bid for the current RFP as well as on another unrelated VA procurement. On both bids, CEI self-certified that it was an SDVOSBC. However, two other bidders challenged CEI’s status as an SDVOSBC on the unrelated procurement through a protest to the Small Business Administration (SBA).
The SBA determined that CEI did not meet the requirements of an SDVOSBC. CEI reviewed the SBA’s determination and realized that it had made an error and failed to provide SBA with proper documentation that would affect the SBA’s decision. CEI notified the VA, on the current RFP, regarding its situation with the SBA. CEI was eventually disqualified from the award. CEI submitted a recertification request to SBA, asking the agency to certify that CEI was in compliance with SDVOSBC status requirements, which it did.
CEI filed this protest asserting that the VA had acted improperly by making a determination regarding CEI’s SDVOSBC status without referring the matter to the SBA. GAO examined a prior case involving a similar fact pattern, where the SBA stated that, once disqualified by an SBA SDVOSBC protest decision, an offeror cannot be considered on a subsequent SDVOSBC procurement until the SBA’s determination is overturned either by appeal or prospective recertification.
GAO solicited the views of the SBA in the present case. The SBA, contrary to the prior case, stated that the VA should have considered CEI’s offer and if CEI were the successful offeror, referred the matter to the SBA for determination of CEI’s SDVOSBC status. The SBA argued that a standing SBA decision regarding an offeror in connection with a prior procurement is not conclusive in a subsequent procurement, but merely raises a question concerning the offeror’s status that the contracting officer must refer to the SBA for conclusive resolution.
GAO held that because the agency’s decision not to consider a disqualified SDVOSBC was consistent with prior SBA policy, the VA’s position was upheld and the protest was denied.