• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Matter of AeroSage, LLC

  • By GCPC GovCon Legal Team
  • August 14, 2019
  • Small Business Set-Asides
  • 0 Comments

Agency: Defense Logistics Agency

Disposition: Protest Sustained in Part, Dismissed in Part, and Denied in Part

Decided: August 23, 2018

Keywords:  Small Business Set-Asides, Rule of Two

General Counsel P.C. Highlight: When seeking requests for proposals in a by-CLIN basis, agencies must consider the value of each CLIN when assessing whether it qualifies for a small business set aside.

Summary of Facts 

The Defense Logistics Agency (DLA) issued a request for proposals (RFP) on May 1, 2018, pursuant to Federal Acquisition Regulation (FAR) part 12, the commercial item acquisition procedures, and the simplified acquisition procedures of FAR part 13.  The solicitation covered the delivery of fuel to locations in Connecticut, Maine, Massachusetts, Rhode Island, and Vermont. Included in the solicitation were 10 contract line item numbers (CLINs), each calling for the delivery of fuel to specific locations.  Proposals could be submitted on a by-CLIN basis. The award called for fixed price indefinite delivery contracts with economic price adjustments. The contracts would be awarded on a CLIN basis to the lowest price technically acceptable offer.   

Prior to the time the proposals were due, AeroSage filed a protest.  

Basis of Protest 

AeroSage protested the solicitation on several grounds.  As to the successful portion of the protest, AeroSage argued the DLA improperly failed to set aside the solicitation for small business concerns.  AeroSage pointed to the Small Business Act, which requires acquisitions under $150,000 be reserved for small businesses. AeroSage noted that due to the size of the tanks, and tank storage capacities at certain sites identified in the RFP, any individual purchase order would necessarily be less than $150,000.  As such, AeroSage argued those CLINS, 0004 and 0009, should have been subject to the rules for Small Business set asides.

The Agency argued that although individually 2 of the 10 CLINs were valued at less than $150,000, the aggregate amount of the CLINs exceeded the $150,000 simplified acquisition threshold.  

DLA argued it properly concluded there was no reasonable expectation at least two small business concerns would make offers at a fair and reasonable price. Therefore, it argued it was not bound to set aside CLINs under the solicitation.  The agency pointed out that the Small Business Administration’s (SBA) procurement center representative (PCR) agreed with its conclusion not to set aside the procurement. Additionally, the DLA provided the GAO with a copy of the small business coordination record.  This record detailed the market research performed by the agency. It was signed by the SBA PCR.  

Protest Sustained 

The GAO’s decision noted that contracting officers are bound to make “every reasonable effort” to locate small businesses to maximize small business participation.  In reviewing the record, the GAO concluded the agency’s determination regarding CLINs 0004 and 0009 was not based on complete information. The record documenting the agency’s market research made clear the agency failed to consider the value of CLINs 0004 and 0009 individually.  Instead, the agency relied on the aggregated value of all 10 CLINs. The aggregated value of the CLINs triggered the non-manufacturer rule. The non-manufacturer rule requires an offeror proposing to provide a product that it did not personally manufacture, it must provide the product of a small business manufacturer.  It was on this basis the agency relied when determining there was no reasonable expectation at least two small business concerns would make offers at a fair and reasonable price. As such, the agency’s evaluation led to the conclusion the set aside was not required. However, the non-manufacturer rule does not apply to small business set aside line items where the value is between the micro-purchase threshold of $3,500 and the simplified acquisition threshold of $150,000.  Thus, the GAO decided the agency’s decision not to set aside CLINs 0004 and 0009 was based on incomplete information and sustained the protest on that basis.

Protest sustained. 


 ¹This case review focuses on the successful portion of the protest. 

Tagged

Rule of TwoSmall Business Set-Asides

Share

Related Posts

Matter of: M.R. Pittman Group, LLC

May 27, 2021

Matter of DLF-CPC JV, LLC

September 4, 2020

Matter of Precise Management, LLC

March 23, 2020

Matter of VBC Commercial Services, LLC

November 7, 2019

Leave a Reply Cancel reply

You must be logged in to post a comment.

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411