See FAR 8.002, Priorities for Use of Mandatory Sources; FAR 8.003, Use of Other Mandatory Sources; FAR 8.004, Use of Other Sources. Specifically, the record shows that DLA received responses from only Benchmade Knife, Gerber, and ARG Tactical concerning a long term IDPO, that prior acquisition history since 2010 showed that awards for the combat knives had only been made to these same three companies, and that DLA had contracted with ARG Tactical on the last two acquisitions for the knives. Therefore, we will generally dismiss a protest challenging a firms small business or socio-economic status. AR at 4; AR, Tab 7, ARG Tactical Quotation, at 19; Tab 8, ARG Tactical SAM Profile, at 1, 6. (Fiskars Brands, Inc., dba Gerber Legendary Blades B-412730, B-412730.2: May 20, 2016) (pdf) Spur argues that the VAs decision not to set the procurement aside for SDVOSB concerns was in contravention of the VA Acts Rule of Two, which is implemented by the VA Acquisition Regulation (VAAR) 819.7004 and 819.7005. For the reasons set forth below, we agree. 8127 (VA Act), implemented by VAAR 819.7004 and 819.7005, created the Veterans First Contracting Program and provides the VA with independent authority to set aside contracts for SDVOSB and VOSB concerns. 15, 2010, 2010 CPD 245 at 2-3; Apex Ltd., Inc., B-402163, Jan. Under the Veterans First Contracting Program, acquisitions must be set aside for SDVOSB concerns if the VA determines that there is a reasonable expectation that offers will be received by at least two SDVOSB concerns and that award can be made at a fair and reasonable price. As a result, the VA concluded it was not required to set aside the procurement, or any subset of the procurement, for SDVOSB concerns. In addition, the agency does not argue that its implementing regulations exempt, or even address, whether the VA Acts Rule of Two applies to multiple-award IDIQ contracts. In this regard, the agency argues that blindly apply[ing] the [VA Acts] Rule of [Two] to require the agency to set aside a multiple-award IDIQ procurement for SDVOSB concerns would result in abandon[ing] the benefits of competition and simply award[ing] the 7-9 SDVOSBs with contracts. Congresss apparent intent when it passed the VA Act was to broadly foster participation in VA procurements by SDVOSB and VOSB concerns. See Aldevra, B-406205, Mar. Prior to the enactment of the VA Act, contracting officers were allowed, but not required, to restrict competition to SDVOSB and VOSB concerns under the Small Business Act, as amended by the Veterans Benefits Act of 2003. However, we see no basis to conclude that the agency has the discretion to ignore the requirements of the VA Act and the VAs own implementing regulations because it anticipates making multiple awards under an IDIQ contract. The statement of work for this procurement requires the successful contractor to provide bonded, fully trained, experienced staff with valid Washington State driver licenses to perform valet parking services for approximately 650 to 750 vehicles daily at VA Puget Sound Health Care System facilities located in Seattle, Washington. In addition, the RFQ requires the successful contractor to have the valet parking site ready to provide full service by the February 1, 2015 start date. a contracting officer of the [VA] shall award contracts on the basis of competition restricted to [VOSBs or SDVOSBs] if the contracting officer has a reasonable expectation that two or more [VOSBs or SDVOSBs] will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States." 38 U. 25274 (May 5, 2004) (The law limits use of SDVOSB procurement authority to procurements that would not otherwise be made from Federal Prison Industries (section 4124 or 4125 of title 18, United States Code) or the [JWOD] Act (41 U. In addition, the FAR addresses the priorities for use of certain mandatory sources and the use of other sources, such as the GSAs FSS. In response, the FAR Council stated that [t]he use of FSS is not required and the use of FSS is not mandatory; however, agencies are encouraged to consider using certain existing non-mandatory sources before considering sources in the open market. Thus, there is nothing in statute or regulation stating that it is unlawful for an agency to issue an SDVOSB sole-source award when the requirement could be satisfied through an order under the FSS, as long as all conditions for a sole-source award are met. Market Research The Small Business Act states that an agency may issue a sole-source SDVOSB award if the contracting officer does not have a reasonable expectation that 2 or more small business concerns owned and controlled by service-disabled veterans will submit offers for the contracting opportunity. AR, Tab 4, Justification for Other than Full and Open Competition; Tab 5, Market Research. 7, 2015, 2015 CPD 28 at 4; Hydroid LLC, B-299072, Jan. Here, the protester argues that publicly available information, but not anything on the face of ARG Tacticals proposal, calls into question its SDVOSB status. The record shows that the agency reviewed ARG Tacticals quotation and SAM profile prior to award, and both showed that ARG Tactical represented that it was an SDVOSB. Nonetheless, the agency maintains that because it needs a minimum of 14 contracts, the number of SDVOSB concerns capable of performing the required work was insufficient to meet its needs. Nothing in the language of the VA Act supports the agencys position that in the context of multiple-award contracts, the VA Acts Rule of Two requires set asides only when there will be two or more SDVOSB or VOSB offers per contract. We recognize it is within the agencys discretion to determine the number of IDIQ contracts required to satisfy its needs. that the A/E shall visit proposed project site, as required . Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U. We conclude that the agencys market research and resulting set-aside decision were reasonable. FAR clause 52.219-27, Notice of Service Disabled Veteran-Owned Small Business Set Aside, states that SDVOSB concerns providing products as manufacturers agree that at least 50 percent of the costs of manufacturing will be performed by the concern or other SDVOSB concerns. The record, as described above, shows that the Air Force conducted ample market research in connection with its decision to set aside the acquisition for SDVOSB, including: (1) issuing a sources sought notice and questionnaire; (2) identifying potential small business offerors using available government contractor databases; (3) surveying those businesses regarding their socioeconomic status; and (4) contacting contracting officials at other Air Force bases to discuss recently conducted procurements for similar aircraft services. VA255P657SC1615, and the exercise of an option under that task order, by the Department of Veterans Affairs (VA) to Live Process, Inc., of Madison, New Jersey, under that firms Federal Supply Schedule (FSS) contract. 8127-28 (2006), requires the VA to consider setting aside a procurement for SDVOSBs, or veteran-owned small businesses (VOSB), before procuring its requirements under the FSS. Ordinarily, in order to qualify as a small business concern to provide manufactured products or other supply items, an offeror must either be the manufacturer or producer of the end item being procured, or if it does not manufacture the item being purchased, the offeror must comply with what is known as the nonmanufacturer rule. We agree with the agency that this market research is consistent with the requirements of the FAR, and we find no basis to sustain Starlights protest that the agency unreasonably set aside the procurement for SDVOSBs. The protesters argue that, had the agency issued a sources-sought notice, it would have discovered that at least two SDVOSBs were interested in competing. 8123, it was not required to set aside a procurement of prosthetic appliances for SDVOSBs. Section 8123 of Title 38 provides: The Secretary may procure prosthetic appliances and necessary services required in the fitting, supplying, and training and use of prosthetic appliances by purchase, manufacture, contract, or in such other manner as the Secretary may determine to be proper, without regard to any other provision of law. We dismiss the request because, as discussed below, our Office will no longer consider protests concerning the contention that the Veterans Benefits, Health Care, and Information Technology Act of 2006 (2006 VA Act), 38 U. On August 1, 2011, the VA issued the task order on a sole-source basis under Live Process FSS contract. Here, Encompass does not show that the VAs set-aside determination was unreasonable. In furtherance thereof, the first question is whether the statutory language provides an unambiguous expression of the intent of Congress. Supplemental Protest at 3-5, citing to AR, Tab 5, Market Research, at 28-29. In this regard, when asked by our Office to respond to the protesters assertions, the agency did not specifically address the frequency of when the contractor would be required to visit the VA facilities, and instead noted only that the solicitation provides for site visits as required. Further, when the agency considered whether the solicitation should be restricted to A/E firms located within the VISN 20 region, the agency project engineer rejected setting a distance limit, proposing instead only that firms that are located closer should be rated higher. In any case, given that the VISN 20 region includes facilities in Washington, Oregon, Idaho, and Alaska, it seems likely that even A/E firms located within VISN 20 will be required to travel significant distances away from their office(s) for necessary site visits. The determination as to whether there is a reasonable expectation of receiving offers from two or more SDVOSB firms that are capable of performing the required work is a matter of informed business judgment within the contracting officers discretion that we will not disturb absent a showing that it was unreasonable. The protester argues that the agencys own market research shows that there are at least two resellers of the Benchmade Knife combat knives on GSAs FSS and, therefore, the sole-source award to ARG Tactical violates statute and regulations because 2 or more SDVOSB companies are capable of supplying the knife. Here, in contrast, the protester asserts that A/E firms are typically not required to be on site for extended periods of time, and the level of effort that would actually need to be performed within the VISN area would be a small percentage of the overall required effort. In this regard, the protester explains that: Whether in support of an upcoming facility renovation or a part of a Statement of Conditions review, the time spent on site by the engineer(s) is relatively small in comparison to the time needed to develop the design documentation or final report of code compliance or conditions; all of which would be performed at the contractors facility, with all submissions of documents, including drafts for Government review, now being performed electronically. Further, we note that the protesters position appears to be consistent with the solicitation, which indicates that the A/E services to be performed under the RFP are Design Services, which include studies, schematics/design development, contract drawings, specifications, cost estimates, and/or construction period services, drawing review services, code compliance reviews, and Joint Commission Statement of Conditions support. Although the RFP makes it clear that site visits will be necessary, see, e.g., SOW at 2 (the required construction period services will include conducting site visits, while the required existing facility code review will include on-site inspection and review), it is not evident from the solicitation how often the required services will require substantial performance on site in addition to design services that can be performed at the A/E firms office(s). Thus, it appears that the project engineer recognized that firms located outside of the VISN 20 region could perform the contract. See DNO Inc., B-406256, B-406256.2, March 22, 2012, 2012 CPD 136 at 4. Further, this Office has stated that an agency may issue an SDVOSB sole-source award even where another SDVOSB exists that could conceivably perform the contract, but has expressed no interest in the work. 28, 2007, 2007 CPD 55 at 7; see also Chicago Dryer Co., B-401888, Dec. 8127, and the VAs implementing regulations, VA Acquisition Regulation, 48 C. Further, as indicated above, the contract specialist, in a database search specifically directed by the contracting officer, found more than 127 profiles of SDVOSB concerns nationwide matching the criteria. Thus, it appears that had the agency expanded its market research beyond the VISN 20 region it would have discovered numerous SDVOSB A/E concerns doing fire protection work. B-411552: Aug 20, 2015) (pdf) IOVC asserts that the VA failed to perform sufficient market research to ascertain the interest and capability of SDVOSBs [service-disabled veteran-owned small business] to perform the requirement. 30, 2012, 2012 CPD 333 at 3; Buy Rite Transp., B-403729, B-403768, Oct. The requirements of the 2006 VA Act do not dictate the use of any particular methodology in assessing the availability of SDVOSB firms to perform a requirement; measures such as prior procurement history, market surveys, advice from the agencys small business specialist, and information concerning prospective offerors business history and capability or capacity may all provide a reasonable basis for a decision to set aside, or not set aside, a requirement for SDVOSBs. but will not exceed ,000,000; and (3) in the estimation of the contracting officer, the contract award can be made at a fair and reasonable price that offers best value to the United States.
Both SBA and the Federal Acquisition Regulatory Council have implemented these statutory provisions in regulations, which state that an agency may not issue an SDVOSB sole-source award if the requirement can be satisfied using Federal Prison Industries, the JWOD Act, or is currently being performed under the authority of the SBAs 8(a) Business Development program. See Singleton Enters.-GMT Mech., A Joint Venture, B-310552, Jan. Since we conclude that the agencys decision not to set aside any of these contracts was inconsistent with the requirements set forth in the VA Act and its implementing regulations, we sustain the protest. market research to the states of Oregon, Washington and Idaho because the solicitation clearly stated under the heading Construction Period Services that site visits would be expected . As noted above, in conducting its market research, the agency used the NAICS code for parking lots and garages to search the Vet Biz database to identify potential SDVOSB firms, then researched the firms websites to determine whether the company performed valet parking services. With regard to setting aside procurements exclusively for veteran-owned small businesses (VOSBs) or SDVOSBs, 38 U.
8127(d); Veterans Administration Acquisition Regulation (VAAR) 819.7005(a). First, the firm alleges that DLAs market research was incomplete and improper and that DLA artificially restricted its research to Wisconsin-capable companies. Agencies can rely on the expectation of price competition to satisfy the fair-market-price requirement. Our Office has established that the determination of whether there is a reasonable expectation of receiving offers from two or more SDVOSBs that are capable of performing the required work is a matter of informed business judgment within the contracting officers discretion that we will not disturb absent a showing that it was unreasonable. 15, 2015, 2015 CPD 128 at 3; Crosstown Courier Serv., Inc., B-410936, March 12, 2015, 2015 CPD 107 at 4. Although the protester lists other websites and databases that it contends the agency should have searched, Comments at 1-2, the protester has not shown the agencys research here to be unreasonable in light of the discretion afforded to contracting officers. 403 (holding that small business concern, which had been determined to be other than small by the Small Business Administration (SBA), was not an interested party to challenge award of a small business set-aside contract, notwithstanding a pending appeal with SBA). (MICCI Imaging Construction Company, Inc., B-405654, November 28, 2011) (pdf) Kingdomware contends that the agency failed to determine whether this acquisition was suitable for an SDVOSB set-aside and, as a result, the agency improperly competed the requirement on an "unrestricted" basis. In this regard, Kingdomware argues that the agency failed to comply with FAR sect. First, Kingdomware objects to the solicitation's reference to the MOBIS schedule. Second, Kingdomware objects to the requirement that the emergency notification service include a capability to notify and receive responses through social media, such as Instant Messenger, Facebook, and Twitter. Kingdomware contends that this requirement amounts to a government endorsement of the use of social media by federal employees during work, and that such a requirement is unnecessary because emergency notifications and responses "could [occur] directly through the emergency notification solution." Id. The agency, however, maintains that the error did not prejudice Kingdomware because the solicitation was sent only to vendors that hold GSA Schedule 70 contracts--including Kingdomware-- and because the agency received no vendor questions regarding the reference. With respect to the solicitation's social media notification capability requirement, the agency responds that the requirement reflects the agency's need to quickly alert staff as to a potential emergency in a broad range of formats. The social media format is necessary, the agency explains, in the event that problems arise with other communication formats, such as when cellular telephone service is disrupted or overloaded.
Aero Sage challenges DLAs decision not to conduct this procurement as an SDVOSB set‑aside on two principal grounds. Second, Aero Sage alleges that it was improper for the contracting officer to decide that Aero Sage and Sage Care did not satisfy the VA Acts Rule of Two because they are owned by the same individual. In this regard, DLA describes the different types of market research the contracting officer performed, including her search in VAs VIP database for SDVOSBs registered in Wisconsin under the applicable NAICS code. With regard to the decision to limit the VIP database research to firms registered in Wisconsin, DLA points out that the procurement involved a small dollar value and a near-immediate delivery schedule. We believe it was reasonable for the contracting officer to posit that a firm whose service area did not include Wisconsin would not be expected to submit an offer for a purchase at this dollar level of approximately ,000. With regard to the contracting officers conclusion that due to common ownership, Aero Sage and Sage Care did not meet the VA Acts Rule of Two requirements, the SBA commented as follows: [D]uring a typical Rule of Two determination, an agency determines whether there is a reasonable expectation that the contract will be awarded at a fair market price. Given these facts, we do not find it unreasonable for the agency to determine that it lacked a reasonable expectation of receiving offers from two or more SDVOSBs and award would be made a fair and reasonable price. We first address the allegation regarding the sufficiency of DLAs market research. The agency considered the geographic location of each of these companies--Texas, Virginia, Pennsylvania, North Carolina, and South Carolina--and concluded that given their distance from the site of performance, there was not a reasonable expectation of receiving offers from two or more SDVOSB firms that would be capable of performing the required work at a reasonable price. Kingdomware asserts that the solicitation is defective in two other respects. Under the Veterans First Contracting Program, the VA has authority to award contracts using other than full and open competition (including set-aside procurements and sole-source awards) in certain circumstances.
The VA contends that the incumbent contract thus provided a reasonable basis for establishing an IGCE, and that Crosstown has not shown that the incumbent contractor is failing to pay its employees as required by the SCA. The SBA is permitted to waive the nonmanufacturer rule where the SBA has determined that no small business manufacturer or processor can reasonably be expected to offer a product meeting the specifications or where no small business manufacturer or processor is available to participate in the procurement. Second, there must be a reasonable expectation that award will be made at a fair and reasonable price. The record further shows that she documented concern that due to their common ownership (and the fact that the principal and negotiator for both firms is the same individual), these two firms essentially would be competing against each other. Thus, she decided that adequate price competition would not occur and, therefore, there was not a reasonable expectation that award could be made at a fair and reasonable price. In these circumstances, we find no basis to sustain the protest against the agencys determination not to set aside the procurement for SDVOSBs. See AR, Tab 9, VA Decision on Agency-Level Protests of RFP Nos. See Crosstown Courier Serv., Inc., supra, at 3 (denying protest challenging a determination not to set aside a procurement for similar VA courier services for SDVOSB concerns based on market research limited to the states where the majority of work would be performed). B-410936: Mar 12, 2015) (pdf) Under FAR 19.502-2(b), a procurement with an anticipated dollar value of more than 0,000, such as the one here, must be set aside for exclusive small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns and that award will be made at fair market prices. 253(c)(5) as authority when awarding a contract for orthopedic and prosthetic appliances and related services without providing full and open competition). This distinction provides further evidence of a congressional intent to require--rather than permit--SDVOSB or VOSB set-asides under subsection (d), when conditions of the statute are met. 8127 was intended to broadly foster participation in VA procurements by SDVOSB and VOSB concerns. Finally, we turn to the VAs additional argument that our decision in the prior protest did not give meaning to 38 U. See Courtney Contracting Corp., B-242945, June 24, 1991, 91-1 CPD para. We also do not agree with the VA that Kingdomware has not been prejudiced by the agency's actions. 804.1102 to notify MICCI of its status as the apparently successful offeror and expedite the [VA's Center for Veterans Enterprise] CVE's review of MICCI's application to be verified and listed in the VIP database as an [service-disabled, veteran-owned small business] SDVOSB concern. Under the bid protest provisions of the Competition in Contracting Act of 1984, 31 U. That is, 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.
Notwithstanding the protester's arguments, we see no basis to sustain the protest. Additionally, Crosstown has not shown that the incumbent is violating the SCA (or more precisely, that the contracting officer was unreasonable in relying on the incumbent's price as reflecting compliance with that term of the contract in developing the IGCE). Here, the record shows that through reasonable market research, the contracting officer identified only two SDVOSBs that she reasonably expected to submit a quotation in response to the solicitation. (In and Out Valet Company B-411019: Apr 15, 2015) (pdf) Crosstown challenges the adequacy of the VAs market research and ultimate determination not to set aside the RFP for SDVOSB concerns. Crosstown further argues that the VAs decision to restrict its market research to Minnesota, despite not limiting the competition to Minnesota-based concerns, was unreasonable and an improper attempt to avoid setting aside the RFP exclusively for SDVOSB concerns. No particular method of assessing the availability of capable small businesses is required; rather, the assessment must be based on sufficient facts so as to establish its reasonableness. In any event, the record indicates that the VA considered whether there was a reasonable expectation of receiving offers from at least two SDVOSBs for these requirements and concluded that there was not such a reasonable expectation. Finally, we note that the legislative history of the VA Act underscores that 38 U. For example, the House Committee on Veterans Affairs report accompanying the bill that ultimately was enacted stated, among other things, that the bill would [p]rovide veteran and service-disabled, veteran-owned small businesses priority in VA contracting . As noted above, in Aldevra, supra, we found that the VA's decision to procure items from the FSS without determining whether the procurement should be set aside for SDVOSBs violated the 2006 VA Act. contracting officer shall set aside an acquisition for competition restricted to SDVOSB concerns upon a reasonable expectation that: (1) Offers will be received from two or more eligible SDVOSB concerns and; (2) Award will be made at a reasonable price. The VA argues that MICCI is not an interested party to pursue this protest because on September 28, 2011, the CVE denied MICCI's application for inclusion in the [Vendor Information Pages] VIP database.