Link: GAO Opinion
Agency: Army Corps of Engineers
Disposition: Protest denied.
Keywords: Commercial Product Acquisition; HUBZone Price Preference
General Counsel P.C. Highlight: HUBZone price preferences cannot be used against other small businesses.
The U.S. Army Corps of Engineers (Army Corps) issued a solicitation for purchase of an aquatic herbicide under FAR Part 12, Acquisition of Commercial Items. The Army Corps received four offers – each containing the same unit price. The Army Corps used FAR Part 14’s guidance on Equal Low Bids to determine the award priority. One of the unsuccessful bidders was Vetcorp, Inc., a HUBZone small business. Vetcorp protested the decision by asserting that, where price was the only factor for award and where all four offerors submitted the same price, Army Corps should not have relied on FAR Part 14 Sealed Bidding, to break the tie in a commercial item acquisition. Vetcorp also asserted that the Army Corps should have provided the company with an evaluation preference as a HUBZone small business under FAR Part 19.
Army Corps’ solicitation, issued pursuant to FAR Subpart 12.6, sought unit prices for purchase of an aquatic herbicide. The solicitation did not specifically identify the basis upon which award would be made but it only requested unit pricing from each vendor. Vetcorp also identified itself as a HUBZone small business concern. The contracting officer (CO) looked to the guidance set forth at FAR § 14.408-6, Equal Low Bids to determine which offeror should receive the award. Army Corps ended up drawing lots and another offeror was awarded the contract.
In its review of the protest, GAO examined the record to determine whether the CO could rely on the FAR Part 14 Equal Low Bids guidance to resolve the tie and concluded that it could. GAO stated that FAR Part 12 gives the COs discretion to choose acquisition procedures under either FAR Part 13, Simplified Acquisition Procedures; FAR Part 14, Sealed Bidding; or FAR Part 15 Negotiated Procurement for making an award. Since Vetcorp did not identify any procurement law, regulation, or any solicitation provision that was violated, GAO stated that Army Corps acted appropriately.
As to the issue of whether Army Corps was required to apply the HUBZone price preference, GAO held that the FAR and the Small Business Act prohibit use of the HUBZone price preference against another small business concern. GAO denied the protest.