Protest challenging solicitation amendment that required offerors to recertify their small business status at the task order level is denied, where the recertification requirement was within the agency’s discretion and applied equally to all offerors.
The Oryza Group LLC protested the terms of an Army solicitation for sustainment information systems support. The incumbent objected to the solicitation requirement that firms recertify their status as a service-disabled veteran-owned small business at the time of proposal submission.
The initial solicitation stated that offerors must represent in good faith that at the time of their written representations, they are a SDVOSB in accordance with the NAICS Code and small business size standard applied for the requirement. The solicitation also advised that offers from firms that were not SDVOSBs or small businesses under the relevant NAICS Code size standard would be considered nonresponsive.
Oryza submitted the lowest-priced technically acceptable proposal, but the agency found that the firm was not certified as an SDVOSB in the System for Award Management. Given that the agency intended to issue the order to an SDVOSB, the agency amended the solicitation to clarify that offerors were required to recertify their status as an SDVOSB at the time of the initial task order proposal submission.
Oryza protested the amended solicitation. The protester explained that while it was awarded its VETS 2 contract as an SDVOSB, the firm is no longer a small business and would not be eligible for task order award if it was required to recertify its SDVOSB status at the task order level. As result, Oryza contends that the Army is improperly treating the firm unequally because only Oryza, the apparent awardee, would be disqualified by the imposition of the retroactive recertification requirement.
In response, the agency argued that the solicitation had always required that offerors represent that they were SDVOSBs at the time of proposal submissions, and that the amendment merely clarified this requirement. The agency maintained that the recertification requirement was within in its discretion, and there was never a specific intent to avoid awarding the order to Oryza.
GAO noted that when a firm is awarded an IDIQ contract as an SDVOSB, the firm is generally considered an SDVOSB for the life of the contract and is not required to recertify its size status for each task order. However, agencies have the discretion to request such a recertification.
GAO found nothing objectionable about the agency’s request. As an initial matter, GAO found it did not need to resolve the question of whether the initial solicitation required offerors to recertify their size. Rather, the question was whether it was objectionable for the agency to amend the solicitation and issue evaluation notices to require offerors to recertify their size status. GAO concluded it was not, as the FAR allows a contracting officer to amend a solicitation when the agency’s needs or terms change. In this case, the procurement was always set aside for SDVOSBs, and the CO determined it was necessary to clarify that offerors were required to recertify their status when they submitted their proposals. Accordingly, rather than cancel the solicitation and resolicit the requirement, the agency amended the solicitation. GAO also found the agency reasonably decided not to cancel and reissue the solicitation, as the protester suggested.
Oryza also argued the agency’s decision amounted to unequal treatment, but GAO disagreed. First, GAO noted the requirement applied to all offerors. That Oryza ultimately cannot make the required representations does not establish improper action on the part of the Army, but simply demonstrates that award to Oryza would not support the agency’s SDVOSB contracting goals.
The Oryza Group LLC is represented by Christopher R. Shiplett of Randolph Law, PLLC. The government is represented by CPT Jeremy D. Burkhart, LTC Andrew J. Smith, Scott N. Flesch, Department of the Army. GAO attorneys Noah B. Bleicher and Peter H. Tran participated in the preparation of the decision.
