Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protests denied.
Keywords: Small Business Set-Asides; GSA Federal Supply Schedule (FSS) Program
General Counsel P.C. Highlight: FAR Part 19, pertaining to small business programs and set-aside requirements, does not apply to BPAs or orders placed against FSS contracts.
—————————————————————————————————————————–
Edmond Computer Company and Edmond Scientific Company protest the terms of a request for quotations (RFQ), issued by the Department of Veterans Affairs (VA), to vendors holding General Services Administration (GSA) Federal Supply Schedule (FSS) contracts. Edmond Computer is a firm that is both a service-disabled veteran-owned small business (SDVOSB) and an FSS holder, and Edmond Scientific is a firm that is both a veteran-owned small business (VOSB) and an FSS holder. Both firms allege that the competition should be limited to small business participation and conducted outside of the FSS program.
The RFQ was issued pursuant to FAR part 8 procedures, and contemplates the issuance of a single blanket purchase agreement (BPA) against the successful vendor’s FSS contract. The solicitation is not set aside for small businesses, SDVOSBs, or VOSBs. The protesters contend that the decision to conduct this competition among FSS vendors using FAR part 8 procedures violates the small business set-aside requirements of the Small Business Act. The FAR provision that is cited implements the Act by generally requiring an agency to set aside acquisitions with an anticipated dollar value of more than $100,000, such as the one here, for small businesses where there is a reasonable expectation of receiving fair market prices from at least two small business concerns (the so-called “Rule of Two”).
GAO states that the regulations implementing the Small Business Act and GSA’s FSS Program expressly anticipate and exclude FSS buys from set-aside requirements. In this regard, the FAR provisions pertaining to FSS contracting, provide that FAR Part 19, pertaining to small business programs, does not apply to BPAs or orders placed against FSS contracts. Nothing in the Small Business Act suggests or requires that the Rule of Two take precedence over the FSS program. To the contrary, the implementing regulations for the small business set-aside program and the FSS program expressly provide that set-aside requirements for the program do not apply to FSS buys. GAO concludes that the Small Business Act and its implementing regulations do not impose a requirement on agencies to first evaluate whether a solicitation should be set-aside for small businesses before purchasing goods or services through the FSS program. The protests are denied.