Link: GAO Opinion
Agency: Department of Energy
Disposition: Protest denied.
Protest that solicitation for facilities support services should have been set aside for historically underutilized business zone (HUBZone) businesses is denied, where agency reasonably determined from market research, past procurement history, consultation with a contracting officer at a similar site, and consultation with the Small Business Administration that there was not a reasonable likelihood that two or more responsible HUBZone business offerors would submit proposals at a fair and reasonable price.
General Counsel P.C. Highlight:
GAO denies the protest of Family Entertainment Services, Inc. (FESI), where it protests the terms of a request for proposals (RFP), issued by the Department of Energy (DOE) for facilities support services for the environmental clean-up activities at the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio, a site with Category 2 nuclear facilities.
FESI contends that the RFP should have been set aside for a competition limited to Historically Underutilized Business Zone (HUBZone) businesses, arguing that the agency’s FedBizOpps notice for the industry day was insufficient because the notice stated that the agency was looking for a contractor to lead the anticipated multi-billion dollar project, which a HUBZone small business would likely not be qualified to handle. GAO states that acquisitions must be set aside for HUBZone small business concerns if the agency determines that there is a reasonable expectation that offers will be received from two or more HUBZone small business concerns, and that award will be made at a fair market price. Generally, GAO regards such a determination as a matter of business judgment within the agency’s discretion, which it will not disturb absent a clear showing that it has been abused. An agency must make reasonable efforts to ascertain whether it will receive offers from at least two HUBZone small business concerns with the capability to perform the work, and GAO will review a protest to determine whether the agency has done so. The use of any particular method of assessing the availability of HUBZone small businesses is not required, and measures such as prior procurement history, market surveys, and advice from the agency’s small business specialist may all constitute adequate grounds for a contracting officer’s decision not to set aside a procurement.
The CO performed database searches using both the applicable NAICS code and keywords. In addition, the CO consulted with another CO who had procured similar services at a similar DOE site. The CO also consulted with the SBA representative regarding the possibility of setting aside the procurement for HUBZone small businesses. The CO determined, based on all of these findings, plus her knowledge of the site’s current contractors and the site’s procurement history, that there was no reasonable expectation that the agency would receive two or more offers from HUBZone firms in response to the RFP. While the protester focuses on the insufficiency of the FedBizOpps notice for the industry day, GAO finds that the CO’s research with regard to this particular procurement–database searches, consultation with another CO and with the SBA representative, and consideration of current contractors at the site and the site’s procurement history–was reasonable. In view of the foregoing considerations, GAO has no basis to question the agency’s judgment not to set aside this requirement for HUBZone concerns. The protest is denied.