Agency Procuring Services on Behalf of VA Can Skip Rule of Two; Veterans4You, Inc. v. United States, COFC No. 19-931C

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Pre-award protest challenging a solicitation for printing services is denied. The solicitation did not violate the government printing mandate—the rule that agencies must obtain printing from the Government Printing Office—because the agency that needed printing, the VA, showed that GPO could not adequately fulfill the printing request. The solicitation also did not violate the VA’s Rule of Two because that rule does not apply to agencies—in this case, the GPO—that procure services on behalf of the VA. And in any event, the GPO had made reasonable efforts to comply with the spirit of the Rule of Two.

The Department of Veterans Affairs submitted a printing requisition to the Government Printing Office for gunlocks, gun lock cables, and wallet cards that contained suicide prevention information. The GPO then issued an invitation for bids with unrestricted competition. Veterans4You, which had been included on GPO’s bid list, filed a pre-award protest with the Court of Federal Claims, alleging that the solicitation violated GPO’s printing mandate, that the VA was required to perform a Rule of Two analysis, and that the GPO had erred in not setting aside the solicitation for service-disabled veteran-owned small businesses.

Veterans4You alleged that the by soliciting the printing requirement, VA and GPO had violated the printing mandate. The government printing mandate, which is codified at 44 U.S.C. § 501, requires that printing for executive agencies be performed by the GPO. The GPO can procure printing services if it determines it is unable to fulfill a printing request.

Here, the court found that VA and GPO properly solicited these materials from the public. The administrative record showed that the VA had encountered problems procuring gunlocks and wallet cards. To avoid these problems, it requested, for the sake of efficiency, that GPO procure them from private contractors. While the gunlocks are not necessarily related to printing, the court found there was no law or regulation that prohibits GPO from procuring non-printed items on behalf of another agency.

Veterans4You further argued that the VA and GPO erred in not performing a Rule of Two analysis before issuing an unrestricted solicitation. The Veterans Benefits Act of 2006 requires VA to award contracts to service-disabled veteran-owned small business if the contracting officer has reason to believe that two or more SDVOSB’s will submit offers and can perform at a reasonable price.

The court, however, found that the text of the VBA makes it clear that the preference for SDVOSB’s only applies when the VA conducts a procurement itself. It does not apply when another entity, like the GPO, conducts the procurement for the VA. Indeed, the court noted, applying the Rule of Two to other agencies would conflict with the legislative history of VBA. When enacting the VBA, Congress expressly elected not to require other federal agencies to comply with the Rule of Two.

The VA did ask the GPO to set aside the award for SDVOSBs. GPO declined, but it tried to accommodate the spirit of the VA’s request by including verified SDVOSBs and VOSBs on its bid list. Still, Veterans4You argued that GPO erred in not formally setting aside the procurement.

The court noted that GPO’s printing regulations require that it provide competition to the maximum extent possible. Thus, GPO’s decision to issue an unrestricted solicitation was reasonable. What’s more, GPO attempted to comply with the spirit of the Rule of Two, which, the court opined, was also quite reasonable. Under the circumstances, GPO’s conduct was not problematic.

The court denied Veterans4You’s motion for judgment on the administrative record and its request for injunctive relief. The court granted the government’s motion for judgment and dismissed Veterans4You’s complaint.

Veterans4You is represented by Sarah C. Reida ofLegal Meets Practical, LLC. The government is represented by Corinne A. Niosi, Douglas K. Mickle, Robert E. Kirschman, Jr., and Joseph H. Hunt of the U.S. Department of Justice as well as Craig D. Barrettof  the U.S. Government Publishing Office and Steven Devine of the U.S. Department of Veterans Affairs.

COFC – Veterans4You