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The VA did not post the task order award or exercise of the option on the Federal Business Opportunities (Fed Biz Opps) website. The court held that the VAs interpretation of the 2006 VA Act and its regulations, which permit the VA to place orders on the FSS without first considering whether to set aside a requirement for SDVOSB (or VOSB) firms, was entitled to deference. In addition, the court has reached a different conclusion about the meaning of the 2006 VA Act. The contracting officers market research and resulting set-aside determination were reasonable. Although Encompass generally contends that the SDVOSBs will not be able to satisfy all of the solicitation requirements, we find that these general and speculative arguments do not show that the VAs business judgment was unreasonable. require that this authority [referenced in subsection (d)] be used in conducting all VA procurements, including FSS purchases. Thus, according to the agency, the statute should be interpreted to mean that the VA may consider its current achievements vis--vis attaining the Secretarys SDVOSB/VOSB contracting goals in deciding to do restricted competitions. Thus, until this protest, the agency had not suggested that the phrase for purposes of meeting the goals under subsection (a) as it appears in 38 U. In matters concerning the interpretation of a statute, the purpose is clear: to determine and give effect to the intent of the enacting legislature. On August 18, Kingdomware became aware of the information on FPDS, and on August 27 protested to our Office both the 2011 award, and the 2012 exercise of the option. Although our Office is not bound by the courts decisions, its decision in Kingdomware, together with the VAs position on the meaning of this statute, effectively means that protesters who continue to pursue these arguments will be unable to obtain meaningful relief. The requirements of the 2006 VA Act do not dictate the use of any particular methodology in assessing the availability of SDVOSB firms to perform a requirement; measures such as prior procurement history, market surveys, advice from the agencys small business specialist, and information concerning prospective offerors business history and capability or capacity may all provide a reasonable basis for a decision to set aside, or not set aside, a requirement for SDVOSBs. In this regard, the statements of work for the two regions required the successful contractor to provide labor, equipment, and transportation services each week-day for pick-up and delivery between the VASLCHCS in Salt Lake City, Utah and four VA clinics each in the northern and/or southern regions (covering Utah, Idaho, and Nevada). While the RFP did not restrict competition to firms located in this geographical area, there was nothing unreasonable in the contracting officers market research focusing on that area and the likelihood of whether firms from outside it would respond to the RFP. Moreover, in this regard, we do not agree with the protesters apparent belief that the VA was required to determine prospective offerors technical acceptability or responsibility in order to determine whether it was likely that it would receive offers from two or more SDVOSBs that appeared capable of performing and that award could be made at a fair and reasonable price. The agency argues that the phrase for purpose of meeting the goals under subsection (a) signals that Congress did not . Starlight Corp., Inc., supra; Mountain West Helicopters, LLC; Trans Aero, Ltd., B‑408150, B‑408150.2, July 1, 2013, 2013 CPD 152 at 3. Here, as explained below, Walker does not show that the VA unreasonably determined that it would receive offers from two or more SDVOSB firms at fair and reasonable prices. Some of the firms identified in those searches were found to be unable to provide the required equipment. Walker has not provided a reasonable basis on which to question the agencys assertion that competition between these two SDVOSB firms will not result in award being made at a reasonable price. The nonmanufacturer rule provides that the offer of a nonmanufacturer small business concern can be considered, provided, among other things, that the small business concern represents that it will supply the product of a domestic small business manufacturer or processor, or that a waiver of this requirement is granted by the SBA. Commonwealth Home Health Care, Inc., B‑400163, July 24, 2008, 2008 CPD 140 at 3. Because a decision whether to set aside a procurement is a matter of business judgment within the contracting officers discretion, our review generally is limited to ascertaining whether that official abused his or her discretion. 22, 2008, 2008 CPD 232 at 3; Viro Med Labs., B‑298931, Dec. The VA asserts that the statute reflects the intent of Congress to give the VA as much flexibility as possible in procuring prosthetic appliances, which are uniquely sensitive and personal to the needs of the individual veteran. For the same reason, we also find no merit to the protesters contention that the VA violated VA Acquisition Regulation 806.302-5 (directing the contracting officer to cite 38 U. (Charlie Mike Prosthetics; Half Milers Rule, LLC, B-409389, B-409389.2: Mar 10, 2014) (pdf)Kingdomware Technologies, of Waldorf, Maryland, a service-disabled veteran-owned small business (SDVOSB), requests reconsideration of our decision in Kingdomware Technologies, B-407232, Sept. We will not question an agency's set aside determination where the record shows that the evidence before the contracting officer was adequate to support the reasonableness of the conclusion that small business competition reasonably could be expected. Further, in making set-aside decisions, agencies need not make actual determinations of responsibility or decisions tantamount to determinations of responsibility; rather, they need only make an informed business judgment that there is a reasonable expectation of receiving acceptably priced offers from small business concerns that are capable of performing the contract. The agencys market research included a review of the prior acquisition history and searches of the VA Western States Consortium blanket purchase agreement website, the National Acquisition Center contract catalog, and the General Services Administrations website. In addition, the agency posted a sources sought notice, conducted a search on Vetbiz.gov, and emailed ninety-one vendors found on with information about the procurement. Walker asserts that the agencys market research failed to consider whether an SDVOSB concern would meet the limitation on subcontracting rule and whether an SDVOSB nonmanufacturer would be providing the product of an SDVOSB concern. Here, the agency incorporated by reference FAR clause 52.219-27, Notice of Service Disabled Veteran-Owned Small Business Set Aside, and assigned NAICS code 334510, Electromedical and Electrotherapeutic Apparatus Manufacturing, to the RFQ. In making set-aside decisions, agencies need not make actual determinations of responsibility or decisions tantamount to determinations of responsibility; rather, they need only make an informed business judgment that there is a reasonable expectation of receiving acceptably priced offers from small business concerns that are capable of performing the contract. 20, 2006, 2007 CPD 4 at 3-4; Information Ventures, Inc., B‑279924, Aug. We will not question an agencys small business determination where the record shows that the evidence before the contracting officer was adequate to support the reasonableness of the conclusion that small business competition reasonably could be expected. Here, the agencys set-aside determination is unobjectionable. The VA states that, moreover, while this specific authority exempts this procurement from any set-aside requirements, the VAs decision not to set-aside the procurement for SDVOSBs was also supported by the agencys conclusion that it did not have a reasonable expectation of receiving fair market offers from at least two SDVOSBs. 17, 2012, in which we dismissed a protest challenging the award of task order No. 8127(d); Veterans Administration Acquisition Regulation (VAAR) 819.7005(a). First, the firm alleges that DLAs market research was incomplete and improper and that DLA artificially restricted its research to Wisconsin-capable companies. Agencies can rely on the expectation of price competition to satisfy the fair-market-price requirement. Our Office has established that the determination of whether there is a reasonable expectation of receiving offers from two or more SDVOSBs that are capable of performing the required work is a matter of informed business judgment within the contracting officers discretion that we will not disturb absent a showing that it was unreasonable. 15, 2015, 2015 CPD 128 at 3; Crosstown Courier Serv., Inc., B-410936, March 12, 2015, 2015 CPD 107 at 4. Although the protester lists other websites and databases that it contends the agency should have searched, Comments at 1-2, the protester has not shown the agencys research here to be unreasonable in light of the discretion afforded to contracting officers. 403 (holding that small business concern, which had been determined to be other than small by the Small Business Administration (SBA), was not an interested party to challenge award of a small business set-aside contract, notwithstanding a pending appeal with SBA). (MICCI Imaging Construction Company, Inc., B-405654, November 28, 2011) (pdf) Kingdomware contends that the agency failed to determine whether this acquisition was suitable for an SDVOSB set-aside and, as a result, the agency improperly competed the requirement on an "unrestricted" basis. In this regard, Kingdomware argues that the agency failed to comply with FAR sect. First, Kingdomware objects to the solicitation's reference to the MOBIS schedule. Second, Kingdomware objects to the requirement that the emergency notification service include a capability to notify and receive responses through social media, such as Instant Messenger, Facebook, and Twitter. Kingdomware contends that this requirement amounts to a government endorsement of the use of social media by federal employees during work, and that such a requirement is unnecessary because emergency notifications and responses "could [occur] directly through the emergency notification solution." Id. The agency, however, maintains that the error did not prejudice Kingdomware because the solicitation was sent only to vendors that hold GSA Schedule 70 contracts--including Kingdomware-- and because the agency received no vendor questions regarding the reference. With respect to the solicitation's social media notification capability requirement, the agency responds that the requirement reflects the agency's need to quickly alert staff as to a potential emergency in a broad range of formats. The social media format is necessary, the agency explains, in the event that problems arise with other communication formats, such as when cellular telephone service is disrupted or overloaded.
The protester argues that the agencys own market research shows that there are at least two resellers of the Benchmade Knife combat knives on GSAs FSS and, therefore, the sole-source award to ARG Tactical violates statute and regulations because 2 or more SDVOSB companies are capable of supplying the knife. Here, in contrast, the protester asserts that A/E firms are typically not required to be on site for extended periods of time, and the level of effort that would actually need to be performed within the VISN area would be a small percentage of the overall required effort. In this regard, the protester explains that: Whether in support of an upcoming facility renovation or a part of a Statement of Conditions review, the time spent on site by the engineer(s) is relatively small in comparison to the time needed to develop the design documentation or final report of code compliance or conditions; all of which would be performed at the contractors facility, with all submissions of documents, including drafts for Government review, now being performed electronically. Further, we note that the protesters position appears to be consistent with the solicitation, which indicates that the A/E services to be performed under the RFP are Design Services, which include studies, schematics/design development, contract drawings, specifications, cost estimates, and/or construction period services, drawing review services, code compliance reviews, and Joint Commission Statement of Conditions support. Although the RFP makes it clear that site visits will be necessary, see, e.g., SOW at 2 (the required construction period services will include conducting site visits, while the required existing facility code review will include on-site inspection and review), it is not evident from the solicitation how often the required services will require substantial performance on site in addition to design services that can be performed at the A/E firms office(s). Thus, it appears that the project engineer recognized that firms located outside of the VISN 20 region could perform the contract. Significantly, Starlight concedes that two SDVOSB firms have experience servicing C-5 aircraft. To the extent that the protester contends that these SDVOSB firms may have limited experience, we find that the protester has not persuasively rebutted the agencys argument that the services being procured are not complex, do not involve specialized tasks, or otherwise require highly skilled labor, unique qualifications, or certifications. The VA responds that, pursuant to the specific authority accorded the agency in 38 U. The VA posted information concerning the task order on the Federal Procurement Data System (FPDS) website the same day. As noted above, the agency conducted market research from which it determined that there were a number of SDVOSBs that appeared capable and interested in performing these requirements. If it does, the matter ends there, for the unambiguous intent of Congress must be given effect. Moreover, we are not persuaded by the protester that it was unreasonable for the Air Force to consider experience providing services to C‑17, C-130, KC-135, and KC‑10 aircraft relevant to providing similar services to C-5 aircraft, and we disagree with the protester that the agency misled offerors in that regard. (Starlight Corporation, Inc., B-410471.2: Dec 30, 2014) (pdf)The protesters contend that the RFP should have been set aside for SDVOSBs, citing the Veterans Benefits, Health Care and Information Technology Act of 2006, 38 U. One year later, on August 1, 2012, the VA exercised an option to extend the task order, and posted the information on FPDS on August 2. While this Office has set forth its view of the 2006 VA Act in Aldevra and its progeny, as well as in testimony before the Congress, the VA has elected not to follow our recommendations. Generally, a procurement set-aside determination is a business judgment within the contracting officers discretion, which we will not disturb absent a showing that it was unreasonable. The agency also determined that there were small business manufacturers from which the VA had obtained the solicited items in the past, and from which non-manufacturing SDVOSBs could obtain the items for sale to the VA. As an initial matter, although the agency has defended numerous protests before our Office involving precisely this issue, this is the first time that the agency has raised these arguments. 8127(d) grants the agency discretion to decide that in some procurements the mandate in the statute will apply, and in other procurements it will not. Generally, the decision whether to set aside a procurement for SDVOSB concerns is a business judgment within the contracting officers discretion, which we will not disturb absent a showing that it was unreasonable. The protesters primary complaint is that the agency unreasonably limited its market research to Minnesota, instead of considering SDVOSB couriers nationwide. Mountain West Helicopters, LLC; Trans Aero, Ltd., B-408150, B-408150.2, July 1, 2013, 2013 CPD 152 at 3. 8123 allows the agency to procure prosthetic appliances and services without considering whether to set aside the procurements for SDVOSBs. As stated above, the VA noted from its experience procuring these goods and services that it did not receive offers from any SDVOSBs over the past 10 years. We also noted that the VA's regulations implementing the 2006 VA Act provide in relevant part: (a) . Aero Sage LLC, B-414314, B‑414314.2, May 5, 2017, 2017 CPD __ at 6; Starlight Corp., Inc., B-410471.2, Dec. No particular method of assessing the availability of capable small businesses is required; rather, the assessment must be based on sufficient facts so as to establish its reasonableness. The VA, however, received responses from two interested SDVOSB concerns that provided capability statements and price estimates, which the agency deemed to be fair and reasonable. During this protest, the agency provided the protester with the names of the two firms identified in the agencys market research. The decision whether to set aside a procurement may be based on an analysis of factors such as the prior procurement history, the recommendations of appropriate small business specialists, and market surveys that include responses to sources sought announcements. Although the protesters characterize the VAs citation to this authority as an after-the-fact justification of its improper procurement planning, see Comments at 3, the contemporaneous record contains numerous citations to this authority. 1, at 5; AR, Tab 2, Market Research Report, at 4; AR, Tab 4, Pre‑solicitation Notice, at 2. Although the protesters disagree with the VAs judgment in this regard, they have not shown it to be unreasonable, or to violate applicable procurement laws or regulations.
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When satisfying requirements from non-mandatory sources, see 7.105(b) and part 19 regarding consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including 8(a) participants), and women-owned small business concerns. Federal Supply Schedules, Governmentwide acquisition contracts, multi-agency contracts, and any other procurement instruments intended for use by multiple agencies, including blanket purchase agreements (BPAs) under Federal Supply Schedule contracts (e.g., Federal Strategic Sourcing Initiative (FSSI) agreements accessible at (see also 5.601)). The preamble of the Federal Register notice announcing this final FAR regulation responded to various comments on the proposed rule and discussed whether the rule was treating FSS and other similar contracts as mandatory sources. DLA therefore concluded that ARG Tactical was the sole SDVOSB that expressed an interest in the acquisition for combat knives. Consequently, DLA reasonably exercised its discretion in determining that the acquisition was appropriate for an SDVOSB sole-source award because its market research showed that only one SDVOSB was interested in the long term IDPO. SDVOSB Status Finally, the protester contends that DLA was required to protest ARG Tacticals SDVOSB status to the SBA before issuing the sole-source award. The SBA, and not our Office or the procuring agency, is the designated authority for determining whether a firm is an eligible SDVOSB under the SBAs program, and it has established procedures for interested parties to challenge a firms status. The agency responded that (d) means that a set aside is required when there will be two or more SDVOSB offers per contract. Instead, the VA Act simply states that a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. There is no dispute that those conditions are satisfied here. Given these requirements, we find that there was nothing unreasonable in the agencys decision to focus its market research on the geographic area in which performance was to occur, and to consider the likelihood that firms from outside of the geographic area would be able to effectively and timely perform the contemplated contract.