Link: GAO Decision
Protestor: Kingdomware Technologies
Agency: Department of Veterans Affairs
Disposition: Protest Sustained
The Department of Veterans Affairs improperly used non-mandatory Federal Supply Schedule procedures to procure services, rather than using a set-aside for service disabled veteran-owned small business (SDVOSB) concerns, and improperly awarding a contract to a non-SDVOSB concern.
General Counsel PC Highlight:
Kingdomware Technologies protested the award to Everbridge, Inc. of a contract to provide employee emergency notification services. Kingdomware argued that, by using non-mandatory FSS procedures, the VA failed to comply with the requirements of the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the VA Act) with regards to setting aside procurements for SDVOSB or VOSB concerns.
The GAO disagreed with the VA’s assertions that, notwithstanding the VA Act, the agency need not consider SDVOSB and VOSB set-asides prior to determining whether to purchase goods or services through the FSS program. Although the agency did not dispute that its market research indicated that there were at least 20 SDVOSBs that could perform the requirements at issue, it maintained that SDVOSB set-asides are discretionary under any FSS acquisition. Relying on its reasoning in an earlier decision, the GAO rejected the VA’s arguments and sustained the protest.
The VA is required to consider setting aside a procurement for SDVOSBs or VOSBs before conducting full and open competition or electing to procure through a different set-aside program. When determining whether to set aside a requirement for SDVOSBs, the VA is required to conduct market research to determine whether there is a reasonable expectation that offers will be received from at least two SDVOSB firms and that award can be made at a fair and reasonable price. If the VA elects to procure through the FSS program, it must still consider the setting the requirement aside for SDVOSBs or VOSBs holding FSS contracts before issuing the solicitation to FSS contract holders on an unrestricted basis. SDVOSBs and VOSBs should maintain their status in the VIP database so as to qualify as an interested party should the VA fail to follow set-aside regulations. This case is the latest in a long string of decisions based on protests by Kingdomware and Aldevra, two SDVOSBs that protest the use of FSS purchases when there are SDVOSBs capable of providing the procurement. The VA has ignored the recommendation in the earlier cases where the protest was sustained and will likely inform the GAO that it does not intend to follow the recommendation in this case.