Protest challenging the agency’s exclusion of a proposal from consideration for award is denied, where the joint venture was ineligible for award because it did not hold a GSA Schedule 70 contract or top secret facility security clearance, even though two JV partners did.
Veteran Technology Integrators LLC protested the Department of Commerce’s rejection of its proposal for a cybersecurity support services contract, and subsequent award to Goldbelt Hawk LLC. The government moved for lack of jurisdiction.
The solicitation was open to holders of Federal Supply Schedule 70 contracts with SIN 132-51. Offerors also were required to have top secret facility security clearances, with eligibility for access to sensitive compartmented information. Prior to the deadline to submit proposals, SBA informed VTI, a joint venture, that it was in eligible for award because it did not hold a Schedule 70 contract under its own name. GSA policy does not transfer a JV partner’s schedule contract to the JV. Nonetheless, VTI submitted a proposal, which the agency eliminated from consideration when it learned that VTI did not hold a Schedule 70 contract under its own name. The agency also could not verify that VTI held a top secret facility security clearance. While two of the JV partners held the required clearances, the joint venture did not. This protest followed and the government moved to dismiss.
The government argued VTI waived its right to challenge the solicitation requirements because it did not file its protest prior to the closing date for proposals. Alternatively, the government argued VTI lacked standing to challenge the award decision, because it could not meet the solicitation requirements.
In response, VTI argued it had not waived its right to protest, because it had diligently pursued its interests after submitting an offer. VTI also noted the CO had reconsidered the decision eliminating VTI’s proposal from the competition. The protester also argued it had standing because it satisfied the solicitation’s requirements through the JV partners.
The court sided with the government, first agreeing that VTI had waived its right to challenge the requirement that offerors hold a Schedule 70 contract because it did not object to this requirement prior to the deadline for proposals. The court found the solicitation clearly stated this requirement and that VTI had been informed prior to the proposal deadline that it would be ineligible to compete for this very reason. Nonetheless, VTI failed to challenge this requirement prior to the deadline, and therefore the court considered the argument waived. While VTI challenged the requirement after its proposal was rejected, by that point the argument was already untimely.
The court also agreed that VTI lacked standing to challenge the award decision because it had no possibility of award under the solicitation requirements. The court was unpersuaded by VTI’s argument that joint ventures are not required to form a separate legal entity under the applicable SBA regulations, noting that the rules quoted by VTI governed the eligibility of a joint venture to qualify as a small business, but said nothing about GSA Schedule contracts or any point applicable to this procurement. While VTI argued that its JV partners held Schedule 70 contracts, neither of those entities were the offeror. In the same vein, the court agreed that VTI could not avail itself of the top secret facility security clearances held by its JV partners, when it did not possess one under its own name.
Veteran Technology Integrators LLC is represented by Theodore P. Watson and Wojciech Z. Kornacki of Watson & Associates, LLC. The government is represented by Robert C. Bigler, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E. Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil Division, Department of Justice; and by Edward Weber, Of Counsel, Department of Commerce.
