COFC decision denying a protest is affirmed. The protester alleged the procurement was set aside for small businesses and that the awardee was not small. The court, however, found the procurement was also governed by the Randolph Sheppard Act, which gives priority to blind persons licensed by state agencies. The awardee was a state agency, and the state agency preference trumped the small business set aside. It didn’t matter that the awardee was not a small business. The protester also alleged the awardee had obtained its proposal information in violation of the Procurement Integrity Act (PIA). But the court held that the awardee had not obtained the protester’s proposal information. Rather, the awardee was the incumbent contractor and the protester was a subcontractor on the incumbent contract. The awardee had legitimately obtained the protester’s information through their prime/sub relationship.
Background
The government issued a solicitation seeking dining room operation services. The procurement was set aside for small business. In addition, the solicitation was subject to the Randolph-Sheppard Act, which meant that priority would be given to a blind persons licensed by a state licensing agency (SLA).
The government received proposals from the Kentucky Office of Vocational Rehabilitation (KVOR). KVOR was an SLA, and it was also the incumbent contractor. The government also received a proposal from Mitchco International, which had been KVOR’ subcontractor on the incumbent contract. The government awarded the contract to KVOR, finding that as an SLA, it was entitled to a priority.
Mitcho filed a size protest, alleging that KVOR was not eligible because it was not a small business. The SBA determined that KVOR was not a small business but it declined to issue a determination on whether KVOR was entitled to SLA preference.
Mitcho filed GAO protests, which were dismissed and denied. Mitcho then filed suit with the Court of Federal Claims, alleging the award violated various provisions of federal procurement law. The COFC denied the protest. MItcho appealed to the Federal Circuit.
Holding
- Appeal Was Not Moot – The government argued that Mitcho’s appeal was moot because (1) it had terminated the contract with KVOR for cause, and (2) did not intend to solicit additional offers under the solicitation. The court reasoned that the injunctive relief Mitcho sought was now moot. But MItcho also sought an award of bid preparation and proposal costs. Even if the government had canceled the solicitation after award, this did not preclude a claim that the award was unlawful in the first place, which would entitle Mitcho to costs under the Tucker Act.
- SLA Preference Trumps SBA Regulations – Mitcho argued that the procurement was set aside for small businesses, KVOR was not a small business, and thus should not have been awarded the contract. The court, however, reasoned that the solicitation was also subject to the Randolph-Sheppard Act, so SLAs were given priority. The specific SLA priority took precedence over the general provisions for small business. If Mitcho disagreed with this preference, it should have objected to the terms of the solicitation.
- KVOR Was Not Required to Assign a Blind Person to Each Facility – Citing a statement of policy, Mitcho contended that SLA offerros had to propose at least one blind person for each dining facility. Here, Mitcho contended, the contract covered multiple facilities, but KVOR had only proposed one blind person as a manager. The court found the statement of policy was not binding; it was just a statement of policy. The Randolph-Sheppard Act itself did not require a blind person at each facility.
- No PIA Violation – Mitchco claimed that KVOR had illegally obtained its proposal information in violation of the Procurement Integrity Act. The court, however, reasoned that the PIA only prohibits disclosure of proposal information. Here, KVOR did not have Mitcho’s proposal information. Instead, KVOR had obtained MItchco’s pricing data as result of Mitcho’s work as a subcontractor on the incumbent contract. KVOR was thus authorized to possess that information and had not violated the PIA.
Mitchco is represented by Alan Grayson. The intervenor, the Kentucky Office of Vocational Rehabilitation, is represented by Andrew J. Schumacher and Andrew Nolon, Internvoe, Southern FoodService Management, is represented by Walter Brad English, Emily J. Chancey, Jon Davidson Levin, and Andrew Watson, III of Maynard, Cooper & Gale, PC. The government is represented by Richard Pace Schroeder, Brian M. Boynton, Martin F. Hockey, Jr. and Douglas K. Mickle of the Department of Justice.
