Protest challenging cancellation of solicitation is dismissed as untimely. The agency issued two solicitations, one to holders of an unrestricted GWAC and one to holders of a GWAC set aside for small businesses. Despite issuing two solicitations, the agency only planned to make one award. When the agency realized its dual solicitation approach was flawed, it cancelled the solicitation issued to holders of the small business GWAC. The protester challenged the cancellation, alleging the agency had not coordinated with the SBA as required by the FAR before cancelling. GAO, however, found that the protest was effectively challenging the agency’s decision to not set aside the procurement for small businesses. But it was apparent from the two inconsistent solicitations that the agency had not intended to set aside the procurement. In light of this, the protester should have protested the set aside decision long before the agency cancelled the set aside solicitation.
That National Institutes of Health (NIH) administered two governmentwide acquisition contracts (GWAC) for information technology called the Chief Information Officer-Solutions and Partners 3 contracts. One of the contracts was unrestricted, the other was set aside for small businesses.
The Department of Labor (DOL) issued two identical solicitations under each of the governmentwide contracts. The solicitation issued to holders of the unrestricted contract stated it was unrestricted. Nevertheless, the solicitation incorporated FAR clauses that only applied to small business set asides. For instance, the solicitation included an NAICS code and provided that any offeror that didn’t meet the size standard could be removed from consideration for award. The second solicitation, which was issued to holders of the small business GWAC and was set aside for small businesses, included similar clauses.
Despite issuing two solicitations—one unrestricted and one set aside for small businesses—DOL planned to only issue one award. Indeed, a vendor had specifically asked how the agency would make a single award when the same requirement was being procurement from both a small business set aside solicitation and an unrestricted solicitation. DOL responded that it was going to evaluate all proposals and simply make award to the vendor who offered the best value to the government.
A prospective offeror, DV United, LLC, filed a protest challenging DOL’s acquisition approach. DV argued that DOL had issued a solicitation set aside for small business while also issuing an unrestricted solicitation for the same requirement. This effectively allowed large businesses to compete for an award set aside for small businesses in violation the set-aside rules.
GAO invited NIH, the administrator of the GWACs, to participate in the protest. NIH submitted a brief expressing concerns with DOL’s dual unrestricted/set-aside solicitations. In light of NIH’s brief, DOL cancelled the solicitation issued to holders of the set aside for small businesses GWAC and informed offerors that it was simply proceeding with the solicitation issued to holders of the unrestricted GWAC.
Another company, Candor Solutions, LLC, then filed a protest challenging the decision to cancel the small business solicitation and proceed with the solicitation issued to the holders of the unrestricted GWAC. Candor claimed that because the small business solicitation had been set aside for small businesses, DOL could only cancel it after making findings and coordinating with the Small Business Administration. Because DOL had not made those findings or coordinated with the SBA, the cancellation was unreasonable.
DOL moved to dismiss the protest as untimely. DOL contended that it should have been apparent from the dueling solicitations that the agency had not intended to set aside the procurement for small businesses. In fact, DOL had explicitly advised offerors that it was simultaneously soliciting bids from small and large businesses and would make a single award. Thus, Candor’s challenge to the cancellation of the small business solicitation was really a challenge to the DOL’s prior notice that it was not setting aside the procurement for small businesses. Because Candor had filed its protest more than 10 days after it was apparent that the agency was not setting aside the procurement, its protest was untimely.
GAO agreed with DOL. There was little doubt that DOL’s acquisition approach was facially flawed. The two solicitations were internally contradictory about whether the procurement was set aside for small businesses. If the inconsistencies in the solicitations were insufficient to put Candor on notice of flaw in the agency’s approach, then DOL’s answers to offerors questions made it clear the agency was not setting aside the procurement for small businesses.
Candor argued that it understood that while two solicitation had been issued, it had believed that DOL would prioritize an award to small businesses. But GAO did not find this argument persuasive. Nothing in either solicitation stated that DOL intended to prioritize an award to small businesses. What’s more, Candor itself conceded that it knew after DOL answered vendor questions that the agency was not going to conduct the procurement as a small business set aside.
Candor is represented by Daniel J. Strouse, Davide S. Cohen, Laurel A. Hockey, Joshua D. Schnell, and John J. O’Brien of Cordatis, LLP. The agency is represented by Jose Otero and Virginia Ackerman of the Department of Labor. GAO attorneys Evan D. Wesser and Edward Goldstein participated in the preparation of the decision.
