Link: GAO Opinion
Agency: Department of Education
Disposition: Protest denied.
Keywords: SDVOSB; set-aside; agency report rebuttal
General Counsel P.C. Highlight: An error in the solicitation is likely not prejudicial if there is no vendor question asked regarding it and if a protestor fails to respond to an agency report the GAO will consider those grounds abandonded.
GAO denies the protest of Kingdomware Technologies, Inc. in reference to the terms of a request for quotations (RFQ), issued to vendors holding General Services Administration (GSA) Federal Supply Schedule (FSS) contracts by the Department of Education, Federal Student Aid (FSA), for an emergency notification subscription service.
Kingdomware, which is a service-disabled, veteran-owned small business (SDVOSB), argues that the agency failed to comply with FAR sect. 19.502-2(b), which generally requires than an agency set aside acquisitions with an anticipated dollar value of more than $150,000 for small businesses where there is a reasonable expectation of receiving fair market prices from at least two small business concerns. GAO states that the regulations that implement small business programs and the GSA FSS program expressly anticipate and exclude FSS purchases from the set-aside requirements in FAR part 19. In particular, FAR sect. 8.404(a) and FAR sect. 38.101(e)–both of which pertain to FSS purchasing–provide that FAR part 19 does not apply to orders placed against FSS contracts. Similarly, FAR sect. 19.502-1(b), which pertains to small business set-aside requirements, also provides that FAR part 19 set-aside requirements do not apply to FSS purchases. In sum, the FAR part 19 regulations on which Kingdomware’s protest is predicated do not impose a requirement on agencies to first evaluate whether a solicitation should be set-aside for small businesses–or SDVOSBs–before purchasing the goods or services through the FSS program. Accordingly, it was not improper for the agency here not to set this requirement aside for SDVOSBs, and Kingdomware’s arguments to the contrary provide no basis on which to sustain the protest.
Kingdomware objects to the solicitation’s reference to the a separate GSA schedule (MOBIS) and to the requirement that the emergency notification service include a capability to notify and receive responses through social media, such as Instant Messenger, Facebook, and Twitter. With respect to the solicitation’s reference to MOBIS, the agency responds that the reference was an error. The agency, however, maintains that the error did not prejudice Kingdomware because the solicitation was sent only to vendors that hold GSA Schedule 70 contracts–including Kingdomware– and because the agency received no vendor questions regarding the reference. With respect to the solicitation’s social media notification capability requirement, the agency responds that the requirement reflects the agency’s need to quickly alert staff as to a potential emergency in a broad range of formats. The social media format is necessary, the agency explains, in the event that problems arise with other communication formats, such as when cellular telephone service is disrupted or overloaded. The agency further explains that the social media notification capability is useful for reaching employees when they are not in the workplace. Where Kingdomware in its comments on the agency report did not rebut the agency’s responses regarding the MOBIS reference or the social media notification capability requirement, GAO considers these protest grounds to be abandoned. The protest is denied.