The protester in this case was the initial awardee. But following an SBA size determination, the agency terminated the protester’s contract and awarded it to another offeror. The protester filed a protest with the COFC challenging the size determination and the new award. But the court found the protester was no longer an interested party. In an attempt to respond to the size protest, the protester had rendered its proposal ineligible and thus  could no longer challenge the new award.
Velocity Training, LLC v. United States, COFC No. 18-1125C
Background
The General Services Administration awarded Velocity Training a small business set aside contract to provide the Air Force with rotary-wing aircraft support. Air Center Helicopters filed a GAO protest challenging the award and a size protest with CO alleging that Velocity was not small under the ostensible subcontractor rule.
In response to the GAO protest, GSA took corrective action. As part of the corrective action, GSA asked Velocity to update a chart with its teaming partners and to clarify the contribution of one of its large business subcontractors. This large business subcontractor was the only member of Velocity’s team that possessed a certification required by the solicitation. Due to a miscommunication, however, Velocity failed to submit timely proposal revisions with the requested information.
As to the pending size protest, Velocity asked SBA to dismiss the protest as moot. Velocity stated that it was no longer going to team with the large business subcontractor, and that it would use a small business with the required certification. But instead of dismissing the size protest, SBA found that Velocity was not small due to its reliance on a large business subcontractor for the required certification.
Days after the SBA issued the size determination, GSA terminated the contract to Velocity for convenience.
Velocity appealed the size determination to SBA’s Office of Hearings and Appeals. But OHA dismissed the appeal, reasoning that it was now moot because GSA had terminated the contract.
Thereafter, GSA notified Velocity that the agency had now awarded the contract to Air Center. GSA explained that it had made the award to Air Center because, in light of SBA’s size determination, Velocity was no longer eligible for award.
Velocity filed a protest with the Court of Federal Claims challenging (1) OHA’s dismissal of the size appeal, (2) GSA’s termination of the contract, and (3) the award to Air Center.
Court’s Analysis
Waived Arguments
Velocity argued that the source of its problems in this procurement was that GSA conducted misleading discussions during the initial evaluation when the agency induced Velocity to add a large business subcontractor as a team member. But the court found that Velocity has waived this argument under Blue & Gold.Â
The court reasoned that Velocity’s real argument was that GSA had misinterpreted the solicitation during discussions. Rather than challenge that misinterpretation, Velocity went along with it and added a subcontractor. Additionally, the court opined, to the extent GSA’s corrective action contributed to the loss of the contract, any challenge to that aspect of the process was waived when Velocity failed to protest the corrective action before the deadline for proposal revisions.
Interested Party
Velocity’s remaining protest argument was limited to the interplay between the size determination, the termination of the contract, and dismissal of the OHA appeal. But the court found that Velocity was not interested party to challenge this interplay.
As noted, during the size protest, Velocity had told the SBA that its proposal was no longer operative because it had removed the large business contract and was going to replace it with a small business subcontractor. In so doing, however, Velocity no longer had a proposal that was responsive to the soliciaton. The large business subcontract was the only team member with a required certification. Unfortunately, Velocity didn’t submit a revised proposal during the corrective action in which it proposed a new subcontractor with the required certification. Thus, Velocity was ineligible for the award and could not maintain the protest.
Velocity is represented by Ira E. Hoffman of Butzel Long. The intervenor, Air Center, is represented by Sharon Larkin of The Larkin Law Group. The government is represented by Richard P. Schroeder of the Department of Justice.
