Did this Solicitation Bundle Previously Procured Requirements, or Did It Seek a New Requirement?

A protester objected to a solicitation. The protester argued the solicitation impermissibly bundled requirements that had been separately procured from small businesses. GAO denied the protest. While the solicitation overlapped with previous requirements, it did not really bundle those requirements. Rather, GAO reasoned, by adding new performance expectations for contractors, the solicitation set forth an entirely new requirement.

Warrior Service Company, GAO B-421364

Background

The VA’s inspector general investigated the agency’s wheelchair repair process. The inspector general concluded the process needed to be standardized. The VA decided it could implement the inspector general’s recommendations by establishing a new national IDIQ contract for wheelchair repairs.

The VA conducted market research for the new IDIQ contract. The agency concluded it couldn't expect proposals from at least two responsible small businesses. Accordingly, the VA issued a solicitation for the new wheelchair repair conduct an unrestricted basis.

Before the deadline for proposals, Warrior Service Company, filed a protest challenging the terms of the solicitation.

Analysis

Warrior argued the solicitation impermissibly bundled several requirements that could be performed by small businesses. Warrior contended this bundling violated the Small Business Act. The Act requires agencies to perform a bundling analysis that considers the effect of bundling on small businesses. Agencies have to present that analysis to the SBA. Warrior alleged the VA had not performed this analysis nor presented it to the SBA.

But GAO wasn’t persuaded. GAO reasoned the bundling analysis was not mandatory because the solicitation did not bundle previous requirements; instead, the solicitation was a new requirement. While the VA had previously acquired wheelchair repair services through various procurement vehicles, the new contract contained new, not-previously-procured services. For example the new requirement had an online portal and a requirement for loaner wheelchairs. These new requirement changed performance expectations for contractors to increase accountability in a manner the VA never previously required.

Warrior is represented by Frank V. Reilly of Frank V. Reilly Attorney at Law. The agency is represented by Maura C. Brown and Jean Athey of the Department of Veterans Affairs. GAO  attorneys Katherine I. Riback and Alexander O. Levine participated in the decision.

--Case summary by Craig LaChance, Senior Editor