Protest arguing the agency’s corrective action will improperly consider a proposal from an offeror that is ineligible for award is dismissed as premature, where the corrective action did not change the ground rules of the competition, and the agency may reject the offeror’s proposal as not eligible for the small business set-aside or could determine after investigation that the offeror has an impermissible OCI.
Deque Systems Inc. challenged the corrective action taken by the Department of Veterans Affairs in response to its protest of the award of a contact for program scanning and services to Level Access Inc.
First, Deque argued that the agency’s corrective action is improper because the agency plans to include Level Access in its reevaluation, even though after award, the Small Business Administration found the awardee to be other-than-small for this procurement. Deque argued the agency should exclude Level Access from the reevaluation.
GAO dismissed this argument as premature. While Deque argued that the reevaluation will be improper because the RFP was set-aside for small businesses, GAO concluded that the agency’s decision to include Level Access in the corrective action did not change the ground rules of the competition. Further, the agency represented that the solicitation’s small business set-aside requirement had not changed. Accordingly, GAO declined to weigh in on the issue, but acknowledged that Deque could challenge the reevaluation if it is not selected for award.
Deque also argued that new facts have emerged to establish that Level Access has an OCI that the agency has not properly addressed. GAO also found this argument premature. As a general rule, GAO noted that a protester is not required to protest that another firm has an impermissible OCI until after that firm has been selected for award. However, when a solicitation is issued on an unrestricted basis, the protester is aware of the facts giving rise to an OCI, and the agency has advised the protester that it considers the firm with the OCI eligible for award, the protester must file its challenge before the closing time for proposals.
In this case, GAO found that exception did not apply, as the current OCI allegation was raised for the first time in this protest and VA had not advised Deque that it has considered and resolved the concerns. Thus, GAO found no requirement for Deque to file its protest at this time. Further, the Level Access may not be selected for award, because it loses the competition, because it is deemed ineligible for the small business set-aside, or because the agency evaluates the allegations and concludes that Level Access has an impermissible OCI. Unless a firm with the alleged conflict of interest is actually selected for award, the protester has not suffered any competitive prejudice.
Deque Systems Inc. is represented by Susan Warshaw Ebner, Sean D. Lee, and Jacqueline R. Scott of Fortney & Scott, LLC. Level Access Inc. is represented by Jeffery M. Chiow, Robert S. Metzger, Stephen L. Bacon, and Lucas T. Hanback of Rogers Joseph O’Donnell, PC. The government is represented by Frank V. DiNicola, Department of Veterans Affairs. GAO attorneys Nora K. Adkins and Amy B. Pereira participated in the preparation of the decision.
