Link: GAO Decision
Protestor: Tennier Industries, Inc.
Agency: Defense Logistics Agency; Small Business Administration
Disposition: Protest Denied.
- Protest that Department of Defense agency improperly permitted Federal Prison Industries, Inc. (FPI) to participate in an Historically Underutilized Business Zone (HUBZone) small business set-aside procurement for supplies on the FPI Schedule, is denied where statute and regulations specifically allow FPI to participate in the procurement.
- Protest that agency improperly failed to apply HUBZone price evaluation preference is denied where the solicitation did not include the price evaluation preference.
General Counsel PC Highlight:
Tennier Industries, Inc. protested the award to Federal Prison Industries, Inc. (FPI) of a contract for extreme cold/wet weather trousers. The RFP was set aside for HUBZone small business concerns seeking the manufacture and delivery of two items which appeared on the FPI Schedule, for which FPI is a “mandatory” supplier. Tennier argued that permitting FPI to compete under this solicitation defeats the purpose of the Historically Underutilized Business Act of 1997.
The GAO found nothing improper in FPI’s participation in the procurement. It found no basis to conclude that FPI was required to comply with the HUBZone subcontracting provisions, since FPI was not HUBZone, nor a small business, and therefore not subject to the subcontracting limitations applicable to HUBZone companies. The GAO then held that there was nothing improper in the agency’s failure to apply a HUBZone price evaluation preference in this procurement, noting that the RFP did not provide for the application of such a preference.
Agencies are generally required to purchase items that appear on the FPI Schedule where, after conducting market research, the agency determines that the supplies produced by FPI are comparable to those available from the private sector in terms of price, quality, and time of delivery. For items that are not comparable in one or more of these areas, agencies are to acquire these items using fully competitive procedures, although they may opt for one of the various set-aside programs. According to the GAO, FPI must be included in fully competitive procedures, and may ultimately receive award if it provides the most advantageous proposal.