Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest sustained.
Keywords: SDVOSB; CVE; VIP Database; Set-aside
Protest alleging that agency improperly rejected protester’s bid in violation of a solicitation clause is sustained where the clause contained a latent ambiguity, the protester reasonably concluded that the clause at issue allowed for an expedited verification review of “the apparently successful offeror’s” status for inclusion in the Department of Veterans Affairs Vendor Information Pages database of eligible service-disabled veteran-owned small business concerns, and the protester had no basis to be aware of the agency’s contrary interpretation of the clause.
General Counsel P.C. Highlight:
Just as an offeror is bound by the terms of the RFP, the government is also bound. When the VA said it would fast-track verification for a SDVOSB if awarded it is not relevant if the intent was only for those already listed in the VIP Database.
GAO sustains the protest of Commandeer Construction Company LLC (CCC), where its bid was rejected under a Department of Veterans Affairs (VA) invitation for bids (IFB), issued as a set-aside for service-disabled veteran-owned small businesses (SDVOSB), for renovation of an existing medical facility in Chillicothe, Ohio.
CCC asserts that the agency improperly rejected its bid without reviewing its SDVOSB status under the fast track verification process set forth in the deviation clause included in the solicitation. In addition, CCC contends that it was misled into participating in this procurement by the solicitation clause, which indicates, in CCC’s view, that any apparent successful offeror–even those not currently listed in the VIP database–would be eligible for fast track verification of its status. GAO states that although procuring agencies have broad discretion regarding selection of the evaluation criteria to be applied, they are required to disclose all evaluation factors and significant subfactors in order for offerors to meaningfully compete on an equal basis. An agency may not induce offerors to prepare and submit proposals based on one premise, then make source selection decisions based on another.
Here, the solicitation’s deviation clause provided an opportunity for “the apparent successful offeror, unless currently listed as verified in the [VIP],” to have its SDVOSB status reviewed under the fast track process. While the agency asserts that this language was only intended to apply to firms already listed in the VIP, but not yet verified, the solicitation clause does not, on its face, indicate that qualification. Indeed, as discussed above, based on the language of the clause, even the contract specialist was prepared to include CCC in the fast track process. GAO agrees with CCC’s contention that the language “unless currently listed as verified” could mean either: (1) firms that are listed, but not verified; or (2) firms that are not listed at all. Thus, under the solicitation clause, either of these types of firms is entitled to a fast track verification review. Since CCC is not yet listed as verified, and since CCC is the low bidder here, CCC is entitled to the expedited verification review. Accordingly, GAO finds the agency’s refusal to consider CCC’s bid under the fast track process to be inconsistent with the IFB’s evaluation criteria, and GAO sustains the protest on this basis.
GAO recommends that the agency review CCC’s SDVOSB status to determine whether the company can be verified. If the protester is properly verified at the end of this review, and if the protester is otherwise found to be responsible, the agency, consistent with the terms of the solicitation clause, should award it the contract. GAO also recommends that the protester be reimbursed its costs of filing and pursuing the protest, including reasonable attorneys’ fees. The protest is sustained.