Our Bid Contest Rules, 4 C.F.R. § 21.1 (c) (4) and (f), require that a protest contain a detailed explanation of the legal and factual reasons for the protest and that the reasons given are legally sufficient. These requirements require protesters to at least provide sufficient, if not contradicted, assertions or evidence to determine the likelihood that the protester will prevail in their claim of inappropriate action by the agency. Midwest Tube Fabricators, Inc., B-407166, B-407167, November 20, 2012, 2012 CPD ¶ 324 to 3. In addition, prejudice is an element of any viable protest, and a protester must demonstrate that without the agency`s actions, they would have had a significant chance of winning a prize. See Piquette & Howard Elec. Serv., Inc., B-408435.3, December 16, 2013, 2014 CPD ¶ 8 to 10; Supreme Foodservice GmbH, B-405400.3 et al., 11 October 2012, 2012 CPD ¶ 292 to 14. The call for tenders was issued as part of a competitive freeze for small businesses under paragraph 8(a) and provided for the award of a fixed-price contract with perpetual delivery and indeterminate quantity for basic operating services at U.S. Coast Guard base Kodiak in Kodiak, Alaska.
RfP at 4.7. The proposed contract provided for one reference year, four 1-year option periods and an additional option for a 6-month extension. Id. at p. 5. With regard to its second argument, the manifesting party claims that the agency unreasonably failed to return CDS to SBA for sizing because CDS itself had no relevant performance reference and experience in the past and therefore exceptionally depended on its subcontractor. According to the protester, this relationship violated SBA`s alleged subcontracting rules and, if the case had been referred to SBA, would have led to the conclusion that CDS and its subcontractor were affiliated. [2] Protesters` comments on the Agency`s report supplemented to 4-5. The applicant alleges that, despite the fact that CDS offered to subcontract less than 50% of the work, the alleged relationship between the subcontractors was clear at first sight in CDS`s proposal and should have prompted the customer to question CDS`s size status. The Small Business Act gives the SBA, not our office, the final authority to determine matters with small business status for federal government procurement. See 4 C.F.R.
§ 21.5(b)(1) (2014). A limited exception applies if a protester argues that the winner`s proposal prima facie shows that the winner is not eligible for a prize as a small business; In these cases, we will examine the relevance of the client`s decision not to refer the case to the SBA. See Hydroid LLC, B-299072, January 31, 2007, 2007 CPD ¶ 20 to 3. As mentioned above, our regulations state that protesters will at least provide sufficient, if not contradicted, claims or evidence to determine the likelihood that the protester will prevail in their claim of inappropriate action by the agency. Midwest Tube Fabricators, Inc., up 3. Here, the protester did not show that anything prima facie about CDS`s proposal would have called into question its status as a small business. Kodiak Base Operations Services, LLC (KBOS), a small 8(a) company based in Anchorage, Alaska, is protesting the award of a contract to Choctaw Defense Services, Inc. (CDS), a small 8(a) company of McAlester, Oklahoma, pursuant to Request for Proposals (RFP) No. HSCG84-16-R-PKC001, issued by the U.S. Coast Guard to support core operations. The protester alleges that the agency erred in assessing SNC`s past experience and performance and unreasonably failed to refer the issue of SNC`s size status to the Small Business Administration (SBA) for size.
2. The protest that the agency improperly failed to return the winner to the Small Business Administration for sizing shall be rejected if the alleged facts do not support the conclusion that the agency`s actions were inappropriate. [1] In its first and first complementary protest, KBOS put forward various grounds for protest related to its own evaluation, as well as the technical evaluation and the winner`s award. KBOS withdrew these earlier grounds for protest shortly after the presentation of its second additional protest. The protester`s comments on the agency`s report to 4. KBOS questions the agency`s assessment of CDS`s past experience and performance. Second additional protest to 2. In that context, KBOS submits that CDS was credited with the past experience and achievements of a sister company, even though CDS`s proposal did not contain a firm commitment by that sister company to participate in the performance of that contract.
Id. at 2-3. Eliminating the previous performance benchmark would have resulted in lower scores for these factors, according to KBOS. In addition, the protester claims that the agency made a mistake by not returning the CDS to the SBA for sizing. The agency awarded the award to CDS and found CDS to be both the technically highest rated and cheapest provider. Id. This protest followed. The call for proposals is to be evaluated on the basis of six factors, some of which contained constituent sub-factors, as indicated in parentheses: (1) management approach (organizational chart and job descriptions); (2) experience (business experience and critical leadership); (3) the staffing plan; (4) past performance (company references and critical management references); (5) oral presentations (organizational chart and business support); and (6) the price.
Id. at p. 52. The tender provided that each non-price factor would receive a high, medium or low confidence rating and that all factors other than price were of approximately equal importance. Id. at p. 68. In addition, the tender provided that the award would be made on the basis of best value for money and that factors other than price, when combined, were significantly more important than price. Id. [3] Even ignoring the fact that the client and its subcontractor appear to be in a similar situation, the issue of a prime contractor`s unusual dependence on a subcontractor, as the demonstrator acknowledges, is an extremely factual investigation that can be influenced by various factors.
See protesters` comments on the agency`s supplementary report to 5, citing Size Appeals of CWU, Inc., et al., SBA No. SIZ-5118, p. 12 (2010). Given the complexity of the analysis, it is not clear under what circumstances such an unusual trust would be clear at first glance in a proposal. In the present case, the facts alleged by the protester do not support the conclusion that the agency acted inappropriately, as the alleged facts do not appear to constitute a violation of the SBA`s rules on alleged subcontractors. In particular, the subcontractor of CDS, such as CDS, is a small business referred to in paragraph 8(a), and the alleged subcontracting rules do not apply, prima facie, to companies in a similar situation. See the Agency`s Supplementary Legal Note, pp. 10-11. In this context, the SBA regulations provide that an alleged subcontractor is a subcontractor which, inter alia, is not an entity in a similar situation. See 13 C.F.R.
§ 121.103(h)(4). That is, prime contractors with the same program standard and small business size status as their subcontractors, such as CDS and its subcontractor, would be exempt from the so-called subcontractor rules. See 13 C.F.R. § 125.1. It should be noted that the demonstrator does not claim that the winner and his subcontractor > are not units located in the same way within the meaning of the Regulation. As a result, the protester did not provide any allegations or evidence proving the likelihood that he would prevail on the merits. [3] [2] A contractor and its alleged subcontractor are treated as joint ventures and related businesses for the purposes of design-basis. An alleged subcontractor is a subcontractor that is not an entity in a similar situation and that meets the primary and important requirements of a contract or contract, or that is a subcontractor on which the prime contractor is exceptionally dependent. 13 C.F.R. § 121.103(h)(4).
Make sure your information is up to date. Plus, use our free tools to find new customers. 1. The protest against an alleged miscalculation shall be rejected if the demonstrator has not proved it, but for the alleged error he would have a significant chance of being awarded. It should be noted that the tender provided that the past experience and performance of large subcontractors and parent or affiliated/sister companies could be credited to suppliers if the bidder`s proposal demonstrated that the resources of the affiliated parent company(ies) would affect the supplier`s performance. Call for tenders at 73. In this case, for the company`s experience and previous service parts of its proposal, CDS submitted four references from a large subcontractor, which was also a small 8(a) company, and one reference from a sister company that shares the same parent organization as CDS. Technical evaluation of proposals at 31-32, CDS Past Performance Information at 1. William K. Walker, Esq., Walker Reausaw, for the protester.
Steven J. Koprince, Esq., Matthew T. Schoonover, Esq., Matthew P. Moriarty, Esq., Ian P. Patterson, Esq., and Candace M. Shields, Esq., Koprince Law, LLC, for the intervener. Diane H. Breithaupt, Esq, Monica J.
Vigil, Esq, and Gina M. Sirianni, Esq., United States Coast Guard, for the agency. Michael Willems, Esq., and Edward Goldstein, Esq., Office of the Advocate General, GAO, participated in the preparation of the decision. With respect to the protester`s argument that CDS was falsely attributed to the experience and performance of its sister company, even assuming that the protester`s allegations are true, the protester did not live up to his burden of demonstrating competitive bias. The sister company`s reference contract was only one of five references submitted by CDS, covered only one of the two sub-factors relating to past experience and performance, and was the lowest rated of the references submitted. Technical evaluation of the proposals in paragraphs 31-32. Therefore, by removing the sister company`s reference, it could reasonably be concluded that CDS`s ratings for these factors have remained the same or may even have improved due to a higher average rating.
