TITLE: B-310552, Singleton Enterprises-GMT Mechanical, A Joint Venture, January 10, 2008
BNUMBER: B-310552
DATE: January 10, 2008
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B-310552, Singleton Enterprises-GMT Mechanical, A Joint Venture, January 10, 2008

   Decision

   Matter of: Singleton Enterprises-GMT Mechanical, A Joint Venture

   File: B-310552

   Date: January 10, 2008

   Arthur Wayne Singleton and Gary Michael Thompson for the protester.

   Tracy Downing, Esq., and Charlma Quarles, Esq., Department of Veterans
   Affairs; John W. Klein, Esq., and Kenneth W. Dodds, Esq., Small Business
   Administration, for the agencies.

   Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency's rejection of firm's bid as nonresponsive under a
   solicitation set aside for service-disabled veteran-owned small business
   concerns (SDVOSBC) is sustained because the matter does not involve the
   responsiveness of the bid; rather, the protest involves the question of
   the status of the bidder as an eligible SDVOSBC, a matter within the
   exclusive authority of the Small Business Administration, not the
   procuring agency.

   DECISION

   Singleton Enterprises-GMT Mechanical, A Joint Venture (JV), protests the
   rejection of its bid as nonresponsive by the Department of Veterans
   Affairs (VA) under invitation for bids (IFB) No. VA-249-07-IB-0058, for
   the replacement of the main transformers at the VA Medical Center in
   Lexington, Kentucky.

   We sustain the protest.

   The agency issued the IFB on the Federal Business Opportunities website on
   August 21, 2007, as a total set-aside for service-disabled veteran-owned
   small business concerns (SDVOSBC). In this regard, the IFB included the
   clause at Federal Acquisition Regulation (FAR) sect. 52.219-27, entitled,
   "Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside,"
   under which a firm must represent at the time it submits its bid that it
   is an eligible SDVOSBC.

   Five firms submitted bids in response to the IFB by the September 25 bid
   opening date. The contracting officer determined that the two lowest bids
   were both nonresponsive for reasons not germane to the protest.
   Singleton-GMT JV's bid was third low. The VA rejected this bid as
   nonresponsive based on its review of a copy of a Singleton-GMT JV
   agreement, dated August 13, which was not included in the firm's bid, but
   was on file with the agency.[1] Agency Report (AR), Tab 4, Singleton-GMT
   JV Agreement (Aug. 13, 2007). The VA claimed that the Singleton-GMT JV
   agreement did not comply with the Small Business Administration's (SBA)
   SDVOSBC regulatory requirement incorporated into this IFB that every JV
   agreement to perform a contract set aside for SDVOSBCs must contain a
   provision "[d]esignating an SDVOSBC as the managing venturer of the joint
   venture, and an employee of the managing venturer as the project manager
   responsible for performance of the SDVO contract."[2] 13 C.F.R.
   sect. 125.15(b)(2)(ii) (2007); FAR sect. 52.219-27(d). The VA, therefore,
   rejected Singleton-GMT JV's bid as nonresponsive, and made award to the
   fourth low bidder, Affiliated Western, Inc. This protest followed.[3]

   At the outset, the agency's determination that the bid of Singleton-GMT JV
   was nonresponsive was clearly in error. Responsiveness involves whether a
   bid as submitted represents an offer to perform, without exception, the
   exact thing called for in the solicitation so that, upon acceptance, the
   contractor will be bound to perform in accordance with the IFB's material
   terms and conditions. B-G Mech. Serv., Inc., B-265782, Dec. 27, 1995, 96-1
   CPD para. 6 at 2. Responsiveness, thus, is determined at the time of bid
   opening from the face of the bid documents. Id. For such purpose, bid
   documents include information submitted with a bid or incorporated into
   the bid by reference. Hewlett-Packard Co., B-184515, Jan. 12, 1976, 76-1
   CPD para. 18 at 5-6. Here, Singleton-GMT JV's bid took no exception to the
   IFB requirements, and the August 13 agreement the agency relied on was
   neither included, nor incorporated by reference, in the bid.

   Moreover, we view the issue of Singleton-GMT JV's eligibility as an
   SDVOSBC to be a matter of status and, where an agency has a question
   regarding a bidder's status as an SDVOSBC, the SBA, not the procuring
   agency, is responsible for determining whether a firm is an eligible
   SDVOSBC.

   In 2003, Congress created, by amending the Small Business Act, a
   procurement program for small business concerns owned and controlled by
   service-disabled veterans, that is, SDVOSBCs. Veterans Benefits Act of
   2003, Pub. L. No. 108-183, 117 Stat. 2651, 2662 (2003), 15 U.S.C. sect.
   657f (Supp. V 2005). The Small Business Act basically defines an SDVOSBC
   as a small business concern that is (1) at least 51 percent owned by one
   or more service-disabled veterans, and (2) managed and controlled by one
   or more service-disabled veterans, or spouse or permanent caregiver of a
   service-disabled veteran with a permanent and severe disability. 15 U.S.C.
   sect. 632(q)(2) (2000). The SBA has issued regulations implementing the
   SDVOSBC program, including one establishing criteria whereby a joint
   venture that includes a partner that is not an SDVOSBC, but is otherwise a
   small business concern, could qualify as an SDVOSBC. 13 C.F.R.
   sect. 125.15(b); see also FAR sect. 19.1403(c).

   As required by the Small Business Act, as amended by the Veterans Benefits
   Act, 15 U.S.C. sections 637(m)(5), 657f(d), the SBA also has established
   procedures for interested parties to challenge a firm's size or status as
   a qualified SDVOSBC. 13 C.F.R. sections 125.24-125.28. Accordingly, we
   requested the views of the SBA in this matter. The SBA asserts that
   questions concerning SDVOSBC status, including whether an SDVOSBC joint
   venture meets the minimum SBA requirements for such arrangements, are not
   for resolution by the procuring agency, but by the SBA. We are required to
   give deference to an agency's reasonable interpretation of its
   regulations, and because the SBA is the agency responsible for
   promulgating the regulations regarding the SDVOSBC program, we give its
   interpretation of its regulations great weight. Catapult Tech., Ltd.,
   B-294936, B-294936.2, Jan. 13, 2005, 2005 CPD para. 14 at 6.

   For competitive set-asides, "[a]ny interested party [to include
   contracting officers] may protest the apparent successful offeror's
   SDVOSBC status." [4] 13 C.F.R. sect. 125.24(b). While the SBA notes that
   its regulations do not explicitly address protests concerning the
   eligibility of SDVOSBC joint ventures, we agree with the SBA that such
   challenges essentially concern the "status" of an SDVOSBC and that such
   status challenges are for consideration by the SBA and not the procuring
   agency.[5] See PPG-CMS-PSI JV, B-298239, B-298239.2, July 19, 2006, 2006
   CPD para. 111 at 5.

   In addition, FAR sect. 19.307(a) provides, "[f]or service-disabled
   veteran-owned small business set-asides, any interested party [to include
   contracting officers] may protest the apparently successful offeror's
   [SDVOSBC] status" and FAR sect. 19.307(h) provides, "[a]ll questions about
   service-disabled veteran-owned small business size or status must be
   referred to the SBA for resolution." The VA focuses on the word "may" in
   FAR sect. 19.307(a) and argues that this leaves it to the procuring
   agency's discretion whether to consult the SBA before rejecting the bid of
   a JV under an SDVOSBC set-aside on the basis that the JV is not compliant
   with applicable SBA regulations. This argument is unavailing for two
   reasons. First, the "may" language in FAR sect. 19.307(a) is clearly
   intended to convey that interested parties (including contracting
   officers) have the right, but are obviously not required, to challenge the
   apparent winner's SDVOSBC status. Second, the VA ignores the mandatory
   "must" language in FAR sect. 19.307(h), which states that all questions
   concerning SDVOSBC status must be referred to the SBA for resolution.

   We sustain the protest. Since the VA questions whether Singleton-GMT JV is
   an eligible SDVOSBC, we recommend that the agency forward this matter to
   the SBA for its consideration. If the SBA concludes that the protester is
   eligible for award as an SDVOSBC, we further recommend that the VA award
   the contract to the protester, if otherwise eligible. We also recommend
   that the agency reimburse the protester for the costs of filing and
   pursuing its protest. Singleton-GMT JV's certified claim for costs,
   detailing the time expended and costs incurred, must be submitted to the
   agency within 60 days of receiving this decision. 4 C.F.R. sect.
   21.8(f)(1) (2007).

   The protest is sustained.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] Singleton-GMT JV submitted the JV agreement in connection with the
   award of two other contracts made by two other VA contracting officers.
   The protester also argues that its JV agreement in place at the time of
   the submission of its bid here was dated September 12, not August 13, and
   that the VA, in this procurement, did not request that it provide its JV
   agreement. Singleton-GMT JV's Comments at 1.

   [2] The VA claims that the Singleton-GMT JV agreement, dated August 13,
   did not comply with the SDVOSBC regulatory requirements because it
   designated the project manager as an employee of the SDVOSBC and/or an
   employee of a non-SDVOSBC, and because it designated an employee of the
   SDVOSBC and/or the non-SDVOSBC as the party responsible for contract
   negotiations. AR at 2.

   [3] The agency stayed performance of the contract because of this protest.

   [4] Challenges to SDVOSBC "status" will be decided by the SBA Associate
   Administrator for Government Contracting. 13 C.F.R. sect. 125.25(e). Size
   status challenges of SDVOSBCs are considered under the SBA's size protest
   provisions by the Government Contracting Area Office serving the
   geographical area where the headquarters of the protested firm is located.
   13 C.F.R. sect. 125.25(a); 13 C.F.R. sect. 121.1003.

   [5] The SBA reports that it has considered challenges concerning the
   propriety of an SDVOSBC joint venture agreement.