Does 8(a) status remain in place for the duration of GSA Schedule contracts? GAO says no.
In MIRACORP, Inc., B-416917 (Comp. Gen. Jan. 2, 2019), the incumbent contractor for administrative support services sought by the Department of Energy, protested the Department’s evaluation and award of a delivery order to RiVidium, Inc., an 8(a) small business. GAO dismissed the protest, saying that the protester–which had graduated from the 8(a) program–lacked standing because it wasn’t eligible for the 8(a) set-aside order.
In a recent decision, GAO determined an agency could reasonably amend a solicitation for a task order issued under a set-side base contract to require offerors to recertify their size and SDVOSB status at the task order level.
As we have previously noted on the blog, a substantial number of protests filed before GAO end in voluntary corrective action taken by the protested agency. In recent decision, GAO addressed just how much discretion agencies have in designing corrective actions.
Spoiler alert: it’s a lot.
GAO sustained a protest recently where a contractor misrepresented
to the agency that it had negotiated offers with incumbent workers when in fact
it had not.
In a protest before GAO, prejudice is an essential element. Even if GAO might agree that an agency’s action was improper, it will not sustain a protest where the protester would not have received the award anyway.
That’s what happened in the protest of Benaka Inc., B-416836 et al. (Dec. 16, 2018).
GAO defers to agencies on many issues related to their procurements. But GAO will intervene when an agency says one thing, in a solicitation, but does another when it evaluates proposals. In other words, GAO will sustain protests when the agencies disregard their own evaluation criteria outlined in a solicitation.
Otherwise, the agency might–even inadvertently–evaluate proposals unequally–a situation that a just and fair procurement system must avoid.
To file a viable bid protest at GAO, the protester must be an “interested party.” Intuition might say that an awardee under a multiple-award vehicle like a blanket purchase agreement should be able to protest other awardees, right?
The GAO recently held otherwise.