Link: GAO Decision
Protestor: FitNet Purchasing Alliance
Agency: Department of the Army
Disposition: Protest Dismissed.
Protest challenging an agency’s decision not to set aside for small businesses an order under the Federal Supply Schedule (FSS) program is dismissed where the protester does not hold an FSS contract, and therefore is not an interested party to pursue this matter
General Counsel P.C. Highlight:
FitNet Purchasing Alliance challenged the terms of a Request for Quotations (RFQ) for a reverse auction of a dual cable cross workout machine, which restricted competition to those vendors holding contracts under GSA’s FSS no. 7830, Recreational and Gymnastic equipment. FitNet, who does not hold an FSS contract, argued that the requirement should be set aside for small businesses under the Small Business Act.
The GAO agreed with the Army’s assertion that FitNet was not an interested party to challenge the terms of the solicitation, as it could not be actual or prospective bidder on an FSS 7830 contract. It disagreed with FitNet’s argument that it was “eligible to participate in” the procurement under a contractor team arrangement (CTA), noting that the GSA requires that all parties to a CTA hold their own FSS contracts. The GAO also stated that even if FitNet were an authorized agent acting on behalf of an FSS vendor, it would still not qualify as an interested party because it would not be the actual or prospective offeror.
Except in rare cases where the law provides exception non-FSS vendors cannot challenge an agency’s decision to procure through the FSS. The GAO noted that even if the requirement must be set aside for small businesses, the Army could have simply restricted the FSS competition to small businesses, rather than conduct the procurement as a small business set-aside. Businesses that deal in the kinds of goods that are regularly procured through the FSS should strongly consider obtaining an FSS contract, both to open up the possibility of bidding on FSS procurements as well as to maintain standing to challenge procurements in the future.