Agency: Department of Veterans Affairs
Disposition: Protest Dismissed
Decided: September 2, 2020
Keywords: Interested Party
General Counsel P.C. Highlight:
A protester is not an interested party where it would not be in line for contract award if its protest were to be sustained.
Summary of Facts
Bluewater Management Group, LLC, a small business of Norfolk, Virginia, protests the Department of Veterans Affairs’s (VA) award decision under RFP No. 36C10X20R0019, for offsite student lodging for the VA law enforcement training center in Little Rock, Arkansas. Bluewater challenges the VA’s decision to only enter into discussions with Brian Hall Properties, a service-disabled veteran-owned small business (SDVOSB).
The RFP was issued on April 16, 2020 and anticipated award of a fixed-price contract for a 1-year base and one 1-year option period. The RFP provided for a total set-side award based on a tiered evaluation method using the following tiers: Tier 1–Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns; Tier 2–Veteran-Owned Small Business (VOSB) Concerns; and Tier 3–Small Business Concerns, with HUBZone Small Business Concerns and 8(a) Participants Having Priority.
The solicitation advised that each tier represents a distinct set‐aside to be evaluated in isolation. Under the RFP, Tier 1 proposals would be evaluated first. If after the review of Tier 1 proposals, the VA could make an award at a fair and reasonable price, no additional tiers will be reviewed. Only if no offers were submitted at Tier 1 or if none of the Tier 1 proposals would result in award would the Tier 2 proposals be evaluated. The RFP also noted that the Government reserves the right to conduct discussions if necessary.
By the solicitation closing date of April 28, 2020, the VA received proposals from offerors qualified under tier 1, including Brian Hall, tier 2, and tier 3, including Bluewater. A competitive range was established and discussions were initiated with Brian Hall. This protest followed on June 15.
Basis of Protest
Bluewater argued that by entering into discussions only with Brian Hall, the VA improperly deviated from the RFP’s tiered evaluation method. Bluewater further argued that after evaluating Brian Hall’s proposal and finding it technically unacceptable, the VA should have evaluated proposals submitted by offerors in tiers 2 and 3. The VA argued the protest should be dismissed since Bluewater is not an interested party to challenge the conduct of the procurement with regard to tier 1.
Under the Competition in Contracting Act of 1984, only an “interested party” may protest a federal procurement. GAO explained that “a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract.” GAO noted that when determining whether a party is interested, a variety of factors should be considered, including the nature of issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement. However, a protester is not an interested party where it would not be in line for contract award, were its protest to be sustained.
GAO explained that Bluewater was only eligible to compete in tier 3, and, thus, was not in line for award because there were other, intervening tiers whose proposals would have to be evaluated and found ineligible for award before the agency could proceed to evaluate tier 3 proposals. Under this RFP, the VA could only evaluate tier 3 proposals if none of the tier 1 or tier 2 proposals would result in award at a fair and reasonable price. Therefore, GAO concluded that Bluewater lacked the direct economic interest required to maintain a protest challenging the VA’s actions with regard to the tier 1 offerors.
The GAO dismissed the protest on this basis.