Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest dismissed.
Protest that agency improperly failed to consider protester for award of a small business contract is dismissed where the solicitation anticipated awards in multiple small business subcategories, and additional awards for up to three remaining small businesses, and where the protester initially received award of a Historically Underutilized Business Zone (HUBZone) contract, and hence was not considered for one of the remaining small business awards; the fact that the protester was subsequently decertified as a qualified HUBZone small business concern in no way renders the agency’s earlier small business awards improper–if anything, the protester’s failure to receive a small business award resulted from its inaccurate representation that it was eligible for a HUBZone award, not from any violation of procurement law or regulation by the agency.
General Counsel P.C. Highlight:
FPM alleges that the agency improperly failed to consider the firm for one of the other small business awards after its initial contract had been terminated following a successful HUBZone status protest. Among other things, the agency asserts that during the initial evaluation and selection period FPM was not considered for any other award because FPM had been selected for award of the HUBZone contract. GAO states that the Bid Protest Regulations require that a protest include a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient. These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency action.
The solicitation here specifically provided that only offerors who were not selected for award under one of the small business subcategories would be considered for one of the remaining small business awards. In this regard, the agency reports that it first selected the awardees under each small business subcategory–8(a), HUBZone and SDVOSB–and then it selected the other small business awardees from the remaining pool of eligible small business offerors. These award determinations were consistent with the express requirements of the solicitation. The fact that FPM’s initial HUBZone award was later terminated after a successful HUBZone status protest does not render the agency’s earlier award determinations unreasonable, nor does it otherwise establish that the agency violated a procurement statute or regulation. In fact, if anything, it was FPM’s inaccurate representation that it was eligible for award as a HUBZone small business that resulted in its selection and resulting unavailability when the remaining small business awards were made. Hence, FPM, not the agency, is responsible for its lack of award. Accordingly, the protest is dismissed.