Link: GAO Decision
Protestor: MCB Lighting & Electrical
Agency: Department of the Air Force; Small Business Administration
Disposition: Protest Denied.
Protest is denied where protester fails to demonstrate that contracting agency failed to comply with Small Business Administration (SBA) regulations in offering a requirement to the SBA as a sole-source award under the 8(a) program and requesting that the award be made to an 8(a) firm other than the protester.
General Counsel PC Highlight:
MCB Lighting & Electrical protested the decision of the Air Force to nominate Utility Systems Solutions (US2) to the SBA for award of a sole-source contract under the 8(a) program. Both MCB and US2 had expressed interest in the acquisition in response to a sources sought notice; MCB also expressed interest via a letter from SBA’s Baltimore District Office (BDO), which indicated that MCB had identified and requested the contract in support of its business plan under the 8(a) program. Responsibility for the requirement was then transferred to a different contracting office, which issued a second sources sought notice. Before responses to that notice were received, the new contracting office received the letter from BDO on behalf of MCB, as well as a letter from the Dallas/Fort Worth District Office (DFWDO) on behalf of US2. Due to a change in applicable NAICS code, the agency informed both the BDO and the DFWDO that it was unable to accept their respective requests. Shortly thereafter, however, the agency received MCB and US2’s responses to the second sources sought notice. Based on those responses, the agency decided to change the NAICS code and set aside the requirement under the 8(a) program; it decided to sole-source to US2 based on its responses to the second sources sought notice.
MCB initially protested that the Air Force had failed to notify the SBA of MCB’s interest in the acquisition in its offering letter to DFWDO. The Air Force took corrective action and amended the offering letter to indicate MCB’s interest. The GAO disagreed with MCB that the amended offering letter was still faulty, pointing out that an agency is only required to provide a brief justification for its nomination for sole-source award. The GAO noted that MCB cited no legal authority supporting its argument that, since BDO appealed the Air Force’s change in NAICS designation on behalf of MCB, and the Air Force did ultimately end up changing the applicable NAICS code, MCB should have received priority over US2 for award. The GAO found reasonable the Air Force’s decision to award to US2 based on MCB’s statements in the second sources sought notice, indicating that its product would not have the UV coating desired.
Agencies have broad discretion to select procurements for inclusion in the 8(a) program, and the SBA will generally defer to the agency’s judgment in whether a procurement is proper for the program. In offering a procurement, the agency may nominate a particular company for award, but need only provide a brief justification for that nomination. 8(a) participants should monitor potential opportunities and work closely with agencies to seek nominations for sole-source awards through the 8(a) program.