Link: GAO Opinion
Agency: Veterans Administration
Disposition: Protest denied.
Keywords: Service Disabled, Veteran Owned Set Aside
General Counsel P.C. Highlight: The VA’s statutory authority to make SDVOSB set aside awards requires that the SDVOSB be on the VA’s current database at the time of award before it can receive an award.
The Veterans Administration maintains its own database of Service-Disabled, Veteran-Owned Small businesses (“SDVOSBs”) that are eligible to receive contracts under solicitations issued by VA as SDVOSB set-asides. 38 C.F.R. part 74 (2009). Eligible businesses are placed on the list for 1 year, after which they must re-apply to maintain its position on the list. The VA’s statutory authority to make SDVOSB set aside awards requires that the SDVOSB be on the VA’s current database at the time of award before it can receive an award.
Corners Construction submitted a bid to the Veterans Administration for carpet replacement. At the time of bid submission, Corners Construction was listed in the VA’s SDVO database. At the time of bid opening, Corners Construction was still listed in the VA’s SDVO database and Corners was found to be the low bidder. Just over three weeks later, when the VA intended to issue the award to Corners, the VA officials found that Corners’ database registration had expired and Corners had not re-submitted its application for recertification. Consequently, the VA awarded the contract to the next-lowest offeror. Corners protested, claiming that because it was listed in the VA’s database at the relevant times of proposal submission and bid opening, that was sufficient to qualify Corners for award. The GAO disagreed.
The statute granting VA authority to set aside procurements for SDVOSB concerns provides that “[a] small business concern may be awarded a [SDVOSB set-aside] contract . . . only if the small business concern . . . [is] listed in the database of veteran-owned businesses. . . .” The VA construed this statute to mean that the offeror had to be listed in the database on the day the award is made, rather than at some other relevant time. The GAO defers to an agency’s interpretation of the statutes and regulations that it is charged to implement, so long as the interpretation is reasonable. The GAO found the VA’s interpretation to be reasonable. The GAO denied Corners’s protest.