Link: GAO Decision
Protestor: Legatus6, LLC
Agency: Department of Veterans Affairs
Disposition: Protests Denied.
Protests maintaining that solicitations should be set aside for service-disabled veteran-owned small businesses (SDVOSBs) are denied where record shows that, on the basis of adequate market research, the agency concluded that it did not have a reasonable expectation of receiving proposals from at least two SDVOSBs at fair and reasonable prices.
General Counsel P.C. Highlight:
Legatus6, LLC protested the terms of several solicitations issued for the design and installation of solar energy photovoltaic projects at various locations throughout the United States. Legatus6 argued that the VA improperly intended to conduct the solicitations through the FSS rather than conducting them as acquisitions set aside for service-disabled, veteran-owned small businesses (SDVOSBs). Legatus6 argued that the agency failed to conduct adequate market research in its decision not to set aside the acquisitions for SDVOSBs.
The GAO distinguished this case from its recent decision sustaining a protest objecting to VA acquisitions conducted through the FSS, noting that there is no question here that the VA did in fact conduct market research before determining that there were not two SDVOSBs capable of meeting the requirements. The GAO first rejected the argument that the agency should have considered the results of its market research in the aggregate, finding it reasonable that the agency considered facts and circumstances unique to each project. The GAO discussed the market research for two projects to illustrate its determination that the market research was reasonable, noting that SDVOSBs who responded to sources sought notifications were sometimes not listed in the VIP database (and therefore ineligible for award), were incapable of performing a project of that scale, or were unable to provide fair and reasonable prices.
The VA is required to set aside solicitations for SDVOSBs where it has a reasonable expectation that it will receive offers from at least two qualified SDVOSBs. However, if, after conducting market research, it determines that there are not at least two SDVOSBs capable of performing at a reasonable market price, it may proceed with the procurement through other channels. While a potential offeror may be dissatisfied with the agency’s decision to procure through the FSS, so long as the agency’s market research was reasonable, the GAO is not likely to sustain a protest.