In a recent bid protest decision, the GAO rejected the protester’s attempt to convince them to take jurisdiction. For non-VA acquisitions, the SBA has sole authority to determine whether an offeror is an SDVOSB.
OBXtek, Inc., B-415258 (Dec. 12, 2017) involved a Department of Homeland Security RFQ for cybersecurity support services, which was issued to holders of the GSA’s OASIS Small Business (Pool 1) IDIQ contract. The order was set aside for SDVOSBs.
After evaluating quotations, DHS announced it would make award to Analytic Strategies, LLC, and OBXtek, Inc., an unsuccessful competitor, filed a bid protest with the GAO.
OBXtek stated that Analytic Strategies had misrepresented its SDVOSB status in order to compete for the set-aside RFQ. They further stated that Analytic Strategies had been acquired by another company and was not an eligible SDVOSB at the time it submitted its quotation.
While OBXtek conceded that the GAO doesn’t have authority to determine whether a company is an SDVOSB, they maintained that Analytic Strategies’ SDVOSB eligibility wasn’t at issue. OBXtek was asking the GAO to determine whether Analytic Strategies had made a material misrepresentation by expressly certifying that it was an SDVOSB. OBXtek pointed out the GAO normally has the ability to determine whether an offeror made a material misrepresentation in its proposal.
While it was pretty imaginative of OBXtek to come up with this interpretation of the rules, the GAO didn’t agree. Under the Small Business Act, the GAO wrote, “the SBA is the designated authority for determining whether a firm is an eligible SDVOSB concern” for most non-VA acquisitions, and “it has established procedures for interested parties to challenge a firm’s status as a qualified SDVOSB concern.” As a result, the GAO “will neither make nor review SDVOSB status determinations.”
Here, “[w]hile the protester may be correct in asserting that allegations of a vendor submitting a quotation with a material misrepresentation is within our Office’s jurisdiction, the issue as it is here, of whether a vendor is an SDVOSB (and eligible to compete under a set-aside) is a matter within the jurisdiction of the SBA.” So determining whether Analytic Strategies had made a material misrepresentation would require GAO to determine whether Analytic Strategies was an SDVOSB–a determination that the GAO is not permitted to make.
OBXtek should have protested to the SBA. They might have been more successful there. However, under SBA’s SDVOSB regulations, a company that qualifies as an SDVOSB at the time of initial offer on a multiple-award contract ordinarily is considered an SDVOSB for the life of that contract, including “for each order issued against the contract.” So ultimately, even if Analytic Strategies, LLC was not an SDVOSB (by having been bought out by another company during the performance of the contract) they would still be considered one because they were at the time of award.
The lesson here is to make sure you are protesting to the correct agency when you protest. Don’t just protest to every possible agency and hope something sticks.