TITLE: B-311141, In and Out Valet Co., April 3, 2008
BNUMBER: B-311141
DATE: April 3, 2008
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B-311141, In and Out Valet Co., April 3, 2008
Decision
Matter of: In and Out Valet Co.
File: B-311141
Date: April 3, 2008
James T. Tramonte for the protester.
Jose H. Lopez, Esq., and Kate Gorney, Esq., Department of Veterans
Affairs, for the agency.
Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
The Department of Veterans Affairs has statutory authority to make a
sole-source award to a service-disabled veteran-owned small business
(SDVOSB) concern where the anticipated award price exceeds the simplified
acquisition threshold but does not exceed $5 million, the SDVOSB is
determined to be a responsible source, and the contracting officer has
determined that award can be made at a fair and reasonable price.
DECISION
In and Out Valet Co., a service-disabled veteran-owned small business
(SDVOSB), concern protests the Department of Veterans Affairs (VA)
decision to make a sole-source award to Veterans Parking Management, LLC
(VPM), also an SDVOSB, for valet parking services at the Pittsburgh VA
Medical Center under request for proposals (RFP) No. VA244-08-RP-0090.
We deny the protest.
BACKGROUND
On May 3, 2007, the VA issued a competitive SDVOSB set-aside solicitation
(RFP No. 244-07-RP-0010). Four offerors responded to the solicitation. VPM
submitted the lowest-priced, most highly rated technical proposal and was
awarded a contract on June 15 for a contract period of June 18 to January
31, 2008. In and Out protested VPM's eligibility as a small business
concern to the Small Business Administration (SBA). On August 6, the SBA
made a formal determination that VPM was other than a small business. As a
result, the agency terminated VPM's contract and issued a noncompetitive
RFP to In and Out which was ranked second technically under the original
competition. Award was made to In and Out on October 1 for the remainder
of VPM's contract -- i.e., for the period of October 15 through January
31, 2008.[1]
On October 4, VPM was re-certified as a small business concern by the SBA.
Around October 14, the agency hired the former project manager for VPM
under a temporary appointment to assist with the transition from
performance by VPM to In and Out. When the temporary appointment expired,
the former project manager was hired for a completely different and
unrelated position.
The contracting officer (CO) states that she decided on December 13, to
award a sole-source contract for the new work to VPM because the VA has
statutory authority to make sole-source awards to SDVOSB concerns. The CO
states that her determination was based on the following: VPM was
re-certified by the SBA as a small business, VPM was registered as an
SDVOSB, VPM provided excellent services under the previous contract prior
to the termination, and there were serious performance issues with In and
Out. The RFP was issued to VPM on a sole-source basis on December 21,
2007, and on January 16, 2008 the contract was awarded to VPM for a 1 year
period. On January 25, In and Out filed this protest with our Office.
DISCUSSION
The protester essentially objects to the sole-source award to VPM
primarily because VPM had been previously determined by the SBA to be
other than a small business concern.[2] The protester argues that the
agency erred in contracting with VPM on a sole-source basis without taking
into consideration the favorable performance it provided on the incumbent
contract. The protester also points to the VA's hiring of VPM's former
project manager to assist with the performance transition from VPM to In
and Out, and maintains that this employee contributed to the protester's
performance problems and influenced the agency's decision to contract with
VPM on a sole-source basis.
The agency asserts that it was within its authority to award the contract
to VPM on a sole-source basis. We agree.
The VA's statutory authority to make sole-source awards to SDVOSBs is set
forth at 38 U.S.C. sect. 8127, Pub. L. No. 109-461, 120 Stat. 3431, 3432
(2006). This authority allows the VA to award to an SDVOSB on a
sole-source basis when:
(1) such concern is determined to be a responsible source with respect
to performance of such contract opportunity;
(2) the anticipated award price of the contract (including options) will
exceed the simplified acquisition threshold (as defined in section 4 of
the Office of Federal Procurement Policy Act (41 U.S.C. 403) but will
not exceed $5,000,000; and
(3) in the estimation of the contracting officer, the contract award can
be made at a fair and reasonable price that offers best value to the
United States.
As explained above, VPM was re-certified as a small business concern by
the SBA on October 4, 2007. Agency Report (AR) Tab 4, SBA Size
Determination. In addition, the agency reports that VPM is currently
registered as an SDVOSB. AR, Tab 8, Sole Source Justification, at 3. In
accordance with the statute, the CO determined that VPM was a responsible
source, that the anticipated award price plus options was more than the
simplified acquisition threshold but less than $5,000,000, and that award
would be made at a fair and reasonable price. AR, Tab 1, CO's Statement at
2 and 3. Moreover, the agency disagrees with In and Out's favorable
assessment of its past performance; in fact, the CO's decision to use this
authority was also based expressly on the fact that the agency was not
satisfied with the protester's performance. Id.
Based on our review, we think the record shows that in making her decision
to award a sole-source contract to VPM, the CO's decision was in accord
with the statute authorizing the award of sole-source contracts to
SDVOSBs. Despite In and Out's desire to compete for this contract--given
its similar status as an SDVOSB--we see no requirement, under this statute
and under these circumstances, for even a limited competition.
Lastly, there is no evidence that the agency's hiring of VPM's former
project manager to assist in the transfer of performance between VPM and
In and Out had any bearing on the VA's decision to award to VPM. As
previously stated, the former project manager was hired by the VA in
October 2007 under a temporary appointment. When that appointment expired
in December 2007, the employee was hired in an unrelated position and was
not a member of the agency's facilities management team at the time of
award.[3] The CO states that this employee had no involvement in her
decision to award a sole-source contract to VPM. AR, Tab 1, CO's Statement
at 4. Other than the protester's speculation, we see nothing in the record
to support an allegation that VPM's former employee influenced the award
decision here.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] The agency reports that the relatively short duration of the initial
contract was because a new parking garage was under construction and the
opening of the new garage was expected to change the scope of the valet
contract. The agency states that it intended to issue a new solicitation
incorporating the revised scope of effort prior to expiration of the
current contract.
[2] The Small Business Act, 15 U.S.C. sect. 637(b)(6), gives the SBA, not
our Office, the conclusive authority to determine matters of small
business size status for federal procurements. We therefore will not
review a protester's challenge to another company's size status, nor will
we review a decision by the SBA that a company is, or is not, a small
business for purposes of federal procurements. Bid Protest Regulations, 4
C.F.R. sect. 21.5(b)(1) (2007); Randolph Eng'g Sunglasses, B-280270,
Aug. 10, 1998, 98-2 CPD para. 39 at 3.
[3] The protester speculates that the former VPM employee may have
contributed to the protester's performance issues and that once this
employee was transferred there were no additional performance problems.
The record does not support these assertions. The record contains numerous
documented incidences of inadequate performance by the protester,
including an incident reported to the CO on
February 1, 2008, long after the former VPM employee had been transferred
to an unrelated position within the VA. AR, Tab 10, Report to CO from
Chief of Police.