An Agency Must Consider the Experience of a Protege in a Mentor-Protege JV. How Much Consideration Is Required?

SBA regulations state that when evaluating a mentor-protégé joint venture, an agency should “consider” the experience of both partners. Here, the protester reasoned the awardee’s protege partner didn’t have relevant experience, so the agency must not have “considered” the protege’s experience. But the COFC found the agency had taken this lack of experience into account and thus “considered” it. 

RBVETCO, LLC v. United States, COFC No 24-357 

• Solicitation – The VA issued a solicitation seeking renovations of a boiler plant. The solicitation was set aside for SDVOSBs. After reviewing proposals, the agency awarded the contract to a mentor-protege joint venture. A disappointed bidder protested. 

• Protege Experience – An SBA regulation, 13 C.F.R. 125.8(c), states that when evaluating a joint venture, an agency must consider the experience of each venture partner. The protester argued the agency had violated this regulation. The protester reasoned the awardee’s protege had no relevant experience, so the VA must not have considered the protege’s experience. 

• Agency “Considered” Protege’s Experience – The court noted the SBA regulation only requires an agency to “consider”: a protege member’s experience. It does not mandate a level of consideration. In this case, the record indicated the agency had considered that the protege didn’t have relevant experience. But the agency found the protege was familiar with the boiler systems it would be working on. The court said this satisfied the regulation’s consideration requirement. 

• Perform Forty Percent – Another SBA regulation, 13 C.F.R. 125.8(c) states that a protege in a mentor-protege JV should perform at least 40 percent of the contract. The protester argued the awardee had not demonstrated that the protege would perform at least 40 percent. But the court noted that this regulation governs the performance of the contract, not the pre-award evaluation. Thus, this argument broached an issue of contact administration the court does not consider in a protest. 

The protester is represented by D. Matthew Jameson III of Burns White LLC. Anthony H. Anikeef of Williams Mullen represents the intervenor. The government is represented by William P. Rayel, Patricia M. McCarthy, and Douglas K. Mikle of the Department of Justice with Angela M. Diorio of the Department of Veterans Affairs and Christopher J. McClintock of the Small Business Administration. 

–Case summary by Craig LaChance, Editor in Chief