Link: GAO Decision
Protestor: Complere Inc.
Agency: National Aeronautics and Space Administration
Disposition: Protest Dismissed.
GAO will not review an agency’s decision not to enter into a noncompetitive phase III funding agreement under the Small Business Innovation Research Program.
General Counsel PC Highlight:
Complere Inc. protested the decision of the agency not to enter into a Small Business Innovation Research (SBIR) program phase III funding agreement with the company. The agency had awarded Complere contracts under SBIR phases I and II for research involving the National Transonic Facility. Following Complere’s successful completion of its phase II contract, the agency decided not to enter into a phase III funding agreement with the company and instead to do its own research on that topic within the agency.
The GAO found that it did not have the jurisdiction to review an agency’s decision declining to enter into a noncompetitive phase III funding agreement, given the agency’s broad discretion to determine whether, and with whom, to enter into phase III funding agreements. It pointed out that, unlike phases I and II of the program, which provide a process under which small businesses compete for a portion of the agency’s SBIR funds, a phase III funding agreement is noncompetitive and does not make use of SBIR funds. The GAO noted that an agency’s decision not to make a noncompetitive award based upon an unsolicited proposal is within the agency’s discretion, which it will not review. It then declined to consider Complere’s speculation that the agency might violate the company’s intellectual property rights, on the grounds that mere speculation does not establish a valid basis for protest. The GAO also considered this to be a contract dispute relating to the phase I and II contract, which is subject to review by either a contract board of appeals or the Court of Federal Claims.
The GAO does not have jurisdiction to hear all bid protests concerning challenges to the terms of solicitations and the award or proposed award of every federal contract. The SBIR is a prime example of a limitation in the GAOs ability to hear a bid protest. Companies participating in the SBIR program will not have the ability to protest to the GAO should the agency which funded their phase I and II awards decline to make a phase III award.