Matter of Express Medical Transporters, Inc. (April 20, 2016)
Agency: Department of Veterans Affairs (VA)
Disposition: Denied in part and dismissed in part
General Counsel P.C. Highlight:
Protestors bear the burden of demonstrating, affirmatively, that the awardee’s proposal does not comply with the terms of the RFP.
Summary of Facts
On July 21, 2015, the Department of Veteran Affairs (VA) issued a Request for Proposals (RFP) as a small business set aside, seeking non-emergency transportation services, specifically servicing James A. Haley Veterans’ Hospital in Tampa, Florida. The RFP contemplated “…all supervision, personnel, vehicles, equipment, transportation, material, supplies, and other items necessary to provide transportation…” The RFP contemplated awarding the proposal to the lowest priced, technically acceptable offeror.
For the purposes of this particular protest, the critical portion of the RFP was a clause of the FAR incorporated by reference, FAR 52.219-14. More specifically, protester pointed out that FAR 52.219-14 (a) limits offerors use of subcontractors, requiring that “…at least 50 % of the cost of contract performance incurred for personnel shall be expended for employees…”
Five proposals were submitted, including a proposal from Express Medical Transporters, Inc., (EMT), the protester, and a proposal from Wheelchair Transport Services, Inc., (WTS), the awardee. Upon being informed of the Agency’s decision to award the contract to WTS, EMT filed an agency-level protest on January 8, 2016. WTS’ primary basis for protesting was that WTS was neither responsive nor a responsible offeror. EMT alleged that WTS would not comply with the wage requirements or the subcontracting limitations in the RFP, because of its intention to rely, almost exclusively, on subcontractors to perform the transportation services. EMT also contended, in a footnote, that WTS did not have the required Small Business Certification, which was required to be considered a responsible offeror for the solicitation.
On January 26, 2016, the Agency dismissed the protest, without addressing EMT’s expressed concern about WTS’ Small Business Certification. The Agency also did not forward the protest to the Small Business Administration (SBA) for review or investigation at that time.
On January 29, 2016, EMT filed a protest with the GAO. During the pendency of the GAO protest, the VA did forward EMT’s allegation to the SBA. On March 10, 2016, the SBA found EMT’s protest to be untimely, but, citing FAR 19.302 (a), still initiated a size protest. On April 1, 2016, the SBA determined WTS did, in fact, qualify as a small business for the purpose of the present procurement.
Offeror Not Required to Demonstrate Compliance with Proposal
As a preliminary matter, the GAO noted that review of an offeror’s compliance with the subcontracting limitation clause is confined to the proposal itself. Generally speaking, an agency’s judgment as to whether a small business offeror will comply with the subcontracting limitation clause is a matter of responsibility, and the contractor’s actual compliance is a matter of contract administration.
That said, GAO found that offerors are not required to demonstrate compliance with such limitations affirmatively. Instead, compliance is presumed, unless there is language in the proposal that specifically negates such a presumption. When a party submits an offer, such an offer is deemed a demonstration of agreement to be bound by the terms of the RFP.
The Protestor bears the burden of demonstrating, affirmatively, that the awardee’s proposal does not comply with the limitations on subcontracting. Arguments that an awardee did not affirmatively establish compliance are insufficient. The Protestor must identify information in the offeror’s proposal that demonstrates that the offer has not agreed to comply with terms of the RFP.
Accordingly, EMT’s protest was denied by GAO as to the allegation that WTS would not comply with the subcontracting limitations because “…EMT fails to point to any portion of WTS’ proposal in which WTS states an intent to rely almost exclusively on independent contract drivers. In the absence of any such indication, GAO concluded that there was nothing on the face of the proposal that should have led the agency to conclude that WTS had not agreed to comply with the subcontracting limitation…”