If a service-disabled veteran-owned small business has been denied verification for the U.S. Department of Veterans Affairs’ Vendor Information Pages database, it cannot file a bid protest with the GAO challenging the VA’s award decision on a VA SDVOSB set-aside procurement—even if the company has a request for reconsideration pending with the VA’s Center for Veterans Enterprise.
So says the GAO in MICCI Imaging Construction Company, B-405654 (November 28, 2011), a decision in which the GAO held that a company that has been denied verification lacks “standing” to pursue a GAO bid protest of a VA SDVOSB set-aside to a competitor. Translating the legalese, the GAO’s message to non-verified companies is, “don’t waste our time.”
The MICCI Imaging Construction Company GAO protest decision involved a VA set-aside procurement for service-disabled veteran-owned small businesses. Two days before submitting its proposal, MICCI submitted an application to the VA CVE for SDVOSB verification. While the evaluation process was proceeding, the VA CVE denied MICC’s SDVOSB verification application. MICC filed a request for reconsideration with the VA CVE, which was pending as of the award date.
The VA made award to one of MICCI’s competitors, stating that MICCI was ineligible because it was not in the VIP database. MICCI filed a GAO bid protest, arguing that under a “class deviation” to the VA Acquisition Regulation, which applied to the solicitation, the VA was required to allow MICCI to file a VA CVE verification application for expedited review, and that its request for reconsideration should be treated like a VA CVE verification application and given expedited treatment.
The GAO disagreed. It held that the request for reconsideration had no effect on MICCI’s status. Because MICCI had been denied verification, it lacked “standing” to file a GAO bid protest, that is, MICCI could not show that if its protest succeeded, it would have a good chance of winning the contract, because it would still be ineligible. The GAO dismissed the protest.
The class deviation at issue in MICCI Imaging Construction Company has since been repealed, but the underlying principle of the GAO’s bid protest decision remains the same: if a company is not included in the VA CVE VIP database at the time a VA SDVOSB set-aside procurement is awarded, it is not entitled to file a GAO bid protest challenging the award, even if it has a request for reconsideration pending with the VA CVE.
The hard “standing” line the GAO drew in MICCI Imaging Construction Company is all the more reason why service-disabled veteran-owned small businesses should apply to the VA CVE for verification as soon as possible, rather than waiting until shortly before a proposal is due, as MICCI did. Remember, too, that the VA CVE has denied a significant percentage of initial applications, according to its own statistics. Companies should take great care to ensure that their verification applications are “airtight” so that they will be verified—not denied—when award decisions are made.