Protest challenging the terms of solicitation is denied. The protesters contended that an amendment requiring small businesses to form small business CTAs was unduly restrictive because it prohibited small business offerors from using a large business subcontractor. GAO found, however, that the amendment was not that restrictive. The amendment merely prevented small business offerors from claiming the experience of a large business in their proposal. This reasonably promoted the use of small business subcontractors without precluding a small business from using a large business subcontractor.
Background
The Department of Health and Human Services' (HHS) Chief Information Officer-Solutions and Partners (CIO-SP4) solicitation contemplates the award of multiple IDIQ contracts for IT services. HHS plans to award contracts to a variety of businesses in different socio-economic categories.
HHS amended the solicitation to revise requirements for small business offerors. The amendment stated that offerors intending to compete for small business awards as part of a contractor teaming arrangement (CTA) had to form a teaming arrangement in which all members of the team were small businesses.
Two prospective small business offerors, International Global Solution, LLC and Definitive InfoTech Services and Solutions, LLC, protested alleging that the amendments regarding small business CTA’s were unduly restrictive. The protesters also claimed that the RFP did not provide enough time to submit proposals, and that the solicitation was ambiguous.
Legal Analysis
- Limitations on Small Business CTA’s Not Unduly Restrictive -- The protesters contended that requiring small businesses to form small business CTAs was unduly restrictive because it prohibited offerors from using a large business subcontractors, which would, in turn, prevent them from relying on the capabilities of a large business in their proposals. But GAO found that this restriction was reasonably related to an HHS policy of promoting the use of small business subcontractors. Moreover, the protesters were wrong in thinking that this restriction prevented them from using a large business subcontractor. Small business CTAs were not prohibited from using large business subcontractors. Read more carefully, the restrictions simply prohibited offerors claiming the experience of a large business subcontractor for as part of a self-scoring experience evaluation criteria.
- Offerors Had Enough Time to Respond to the Amendments -- The protesters argued that they did not receive enough time to respond to the small business CTA amendments. But GAO noted that nothing in the FAR prescribes a reasonable amount of time to respond to solicitation amendments. In any event, the protesters had 39 days to respond, which GAO believed was reasonable.
- Solicitation Was Not Ambiguous -- The protesters claimed the solicitation was unclear as to how the agency would assess the value of past contracts. GAO disagreed, finding that the solicitation made it clear that value would be assessed based on the amount of “obligated” funds. GAO reasoned that the term is reasonably understood as the amount of funds that are subject to a binding government contract.
The protesters are represented by Shane M. McCall, Nicole D. Pottroff, Christopher S. Coleman, John Holtz, and Kevin B. Wickliffe of Koprince McCall Pottroff, LLC. The agency is represented by Krystal Jordan, Karyne Akhtar, and Martin McEnrue of the Department of Health and Human Services. GAO attorneys Jonathan L. Kang and John Sorrenti participated in the preparation of the decision.