Is it Groundhog Day? Aldevra Strikes Again

In the kitschy but rather enjoyable 1993 movie Groundhog Day, a still young-looking Bill Murray plays a weatherman who finds himself repeating the same day over and over.  For those following the battle between Aldevra, a service-disabled veteran-owned small business (and others in Aldevra’s corner), and the U.S. Department of Veterans Affairs, a Groundhog Day-style repetition seems to have emerged.

First, the VA issues an unrestricted solicitation under the Federal Supply Schedule.  Second, Aldevra (or someone else), files a bid protest with the GAO, alleging that the VA’s use of the FSS violates its “Veterans First” obligations.  Third, the GAO sustains the protest.  And fourth, the VA keeps on doing it.

So here’s another Aldevra protest–any guesses what happens next?

The latest decision in this repeating story is the GAO Protest of Aldevra, B-406331, B-406391 (April 20, 2012).  In that case, the VA issued a solicitation for refrigerators and miscellaneous kitchen equipment under FSS procedures, and listed the items on the FedBid procurement auction system.  Aldevra filed a GAO bid protest, arguing that the VA had acted improperly by using FSS procedures before determining whether the competition could be set-aside for service-disabled veteran-owned small businesses or veteran-owned small businesses.  Responding to the protest, the VA admitted that it had not performed market research to determine whether a SDVOSB set-aside or VOSB set-aside was appropriate before using the FSS procedures.

The GAO made very short work of the protest.  In a two-page decision, it cited its previous ruling in GAO Protest of Aldevra, B-406205 (Mar. 14, 2012), stating that the issues were the same.  The GAO sustained Aldevra’s protest, recommending that the VA conduct market research to determne whether a set-aside is appropriate.  It also recommended that the VA reimburse Aldevra the costs of its protest.

Of course, the odds of that happening are not exactly good.  Despite howls of outrage from the veteran community, the VA has made it clear that it intends to continue ignoring the GAO’s Aldevra recommendations.  Hopefully, the federal courts will soon weigh in and enjoin the VA from refusing to consider set-asides before proceeding under the FSS.  Until then, though, expect Groundhog Day to continue at the GAO, with more protests, sustain decisions, and ignored recommendations.

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