8(a), Size and Bundling Updates

Updates and Opinions on Timely Topics Impacting the Government Contracting Industry from GovCon Expert Ken Dodds

Too late and probably not eligible anyway

DHS issued an RFQ under GSA’s Highly Adaptive Cybersecurity Services (HACS) Multiple Award Schedule (MAS) contract as an 8(a) set-aside. DHS’s RFQ required respondents to represent their 8(a) status at the time of their quote submission and provided quotes submitted by firms that were not 8(a) at the time of quote submission would not be considered. The protester was an 8(a) concern when it received its GSA MAS contract but was not an 8(a) concern when it submitted its quote. The protester contended that the RFQ was ambiguous with respect to whether a firm had to be an 8(a) concern at the time of proposal submission. GAO dismissed the protest, explaining that at best the RFQ was patently ambiguous and vendors that fail to challenge a patently ambiguous solicitation prior to the due date do so at their own peril.[1] Although not discussed in the decision, the GSA HACS MAS contract is not an 8(a) contract, i.e., there are non-8(a) small and large businesses on the contract. Under SBA’s rules, DHS should have offered the RFQ to SBA for acceptance into the 8(a) program, and the firm had to be an 8(a) concern on the date of offer or quote.[2] ????

Whether a contractor can perform is not a size protest issue

An unsuccessful offeror protested the size status of the proposed awardee of a small business set-aside contract to provide medical waste pickup and disposal services. The protester contended the proposed awardee was not registered to transport waste and did not have the necessary vehicles to transport waste. The protester contended the proposed awardee was unduly reliant on a large business subcontractor to perform the work and that the proposed awardee would not comply with the limitations on subcontracting. The proposed awardee responded that it did not have a subcontractor, and that if it did subcontract it would be with a similarly situated entity. In a size appeal, OHA explained that whether a contractor has the necessary licenses or certifications and whether it will comply with the limitations on subcontracting is a matter of responsibility that is within the purview of the contracting officer, and not a matter for consideration in a size protest. In addition, the protester failed to allege in its initial protest that the government could not contract with the proposed awardee because it was not registered, and OHA does not generally consider matters raised for the first time in a size appeal. Thus, OHA dismissed the appeal and affirmed the Area Office’s size determination finding the apparent awardee was a small business.[3]

Not all bundling is bundling

The Small Business Act provides agencies should avoid unnecessary and unjustified bundling.[4] Bundling under the Small Business Act is the consolidation of two or more contracts that small businesses perform or could perform into a solicitation for a contract that is unsuitable for award to a small business.[5] Bundling may be necessary and justified if it results in measurably substantial benefits.[6] Historically the VA acquired wheeled mobility device repair services in a variety of ways including purchase card transactions, under local durable medical equipment (DME) contracts, as well as performing some repairs in-house at VA facilities. The protester, a small business, provided repair services under a local DME contract. The protester argued that the VA’s decision to issue an unrestricted solicitation to acquire repair services nationwide constituted bundling under the Small Business Act. In denying the protest, GAO found that the protester had failed to allege that the VA was consolidating at least two separate smaller contracts. Further, the VA sufficiently explained that the requirement was new. In addition to providing repair services nationwide, the contractor will provide an online portal, a contact center, and loaner mobility devices when repairs are made. Thus, GAO denied the protest.[7] ?

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[1] Karthik Consulting, LLC, B-421610.2, May 31, 2023.

[2] 13 CFR 124.503(i)(2).

[3] Size Appeal of Advant-Edge Solution of Middle Atlantic, Inc., SBA No. SIZ-6194 (March 2, 2023).

[4] 15 USC 631(j).

[5] 15 USC 632(o).

[6] 15 USC 644(e); FAR 7.107-3; 13 CFR 125.2(d)(2).

[7] Warrior Service Company, B-421364, April 13, 2023, 2023 CPD 102.