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See FAR 8.002, Priorities for Use of Mandatory Sources; FAR 8.003, Use of Other Mandatory Sources; FAR 8.004, Use of Other Sources. Specifically, the record shows that DLA received responses from only Benchmade Knife, Gerber, and ARG Tactical concerning a long term IDPO, that prior acquisition history since 2010 showed that awards for the combat knives had only been made to these same three companies, and that DLA had contracted with ARG Tactical on the last two acquisitions for the knives. Therefore, we will generally dismiss a protest challenging a firms small business or socio-economic status. AR at 4; AR, Tab 7, ARG Tactical Quotation, at 19; Tab 8, ARG Tactical SAM Profile, at 1, 6. (Fiskars Brands, Inc., dba Gerber Legendary Blades B-412730, B-412730.2: May 20, 2016) (pdf) Spur argues that the VAs decision not to set the procurement aside for SDVOSB concerns was in contravention of the VA Acts Rule of Two, which is implemented by the VA Acquisition Regulation (VAAR) 819.7004 and 819.7005.[10] For the reasons set forth below, we agree. 8127 (VA Act), implemented by VAAR 819.7004 and 819.7005, created the Veterans First Contracting Program and provides the VA with independent authority to set aside contracts for SDVOSB and VOSB concerns. 15, 2010, 2010 CPD 245 at 2-3; Apex Ltd., Inc., B-402163, Jan. Under the Veterans First Contracting Program, acquisitions must be set aside for SDVOSB concerns if the VA determines that there is a reasonable expectation that offers will be received by at least two SDVOSB concerns and that award can be made at a fair and reasonable price. As a result, the VA concluded it was not required to set aside the procurement, or any subset of the procurement, for SDVOSB concerns. In addition, the agency does not argue that its implementing regulations exempt, or even address, whether the VA Acts Rule of Two applies to multiple-award IDIQ contracts. In this regard, the agency argues that blindly apply[ing] the [VA Acts] Rule of [Two] to require the agency to set aside a multiple-award IDIQ procurement for SDVOSB concerns would result in abandon[ing] the benefits of competition and simply award[ing] the 7-9 SDVOSBs with contracts. Congresss apparent intent when it passed the VA Act was to broadly foster participation in VA procurements by SDVOSB and VOSB concerns.[14] See Aldevra, B-406205, Mar. Prior to the enactment of the VA Act, contracting officers were allowed, but not required, to restrict competition to SDVOSB and VOSB concerns under the Small Business Act, as amended by the Veterans Benefits Act of 2003. However, we see no basis to conclude that the agency has the discretion to ignore the requirements of the VA Act and the VAs own implementing regulations because it anticipates making multiple awards under an IDIQ contract. The statement of work for this procurement requires the successful contractor to provide bonded, fully trained, experienced staff with valid Washington State driver licenses to perform valet parking services for approximately 650 to 750 vehicles daily at VA Puget Sound Health Care System facilities located in Seattle, Washington. In addition, the RFQ requires the successful contractor to have the valet parking site ready to provide full service by the February 1, 2015 start date. a contracting officer of the [VA] shall award contracts on the basis of competition restricted to [VOSBs or SDVOSBs] if the contracting officer has a reasonable expectation that two or more [VOSBs or SDVOSBs] will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States." 38 U.

25274 (May 5, 2004) (The law limits use of SDVOSB procurement authority to procurements that would not otherwise be made from Federal Prison Industries (section 4124 or 4125 of title 18, United States Code) or the [JWOD] Act (41 U. In addition, the FAR addresses the priorities for use of certain mandatory sources and the use of other sources, such as the GSAs FSS. In response, the FAR Council stated that [t]he use of FSS is not required and the use of FSS is not mandatory; however, agencies are encouraged to consider using certain existing non-mandatory sources before considering sources in the open market. Thus, there is nothing in statute or regulation stating that it is unlawful for an agency to issue an SDVOSB sole-source award when the requirement could be satisfied through an order under the FSS, as long as all conditions for a sole-source award are met. Market Research The Small Business Act states that an agency may issue a sole-source SDVOSB award if the contracting officer does not have a reasonable expectation that 2 or more small business concerns owned and controlled by service-disabled veterans will submit offers for the contracting opportunity. AR, Tab 4, Justification for Other than Full and Open Competition; Tab 5, Market Research. 7, 2015, 2015 CPD 28 at 4; Hydroid LLC, B-299072, Jan. Here, the protester argues that publicly available information, but not anything on the face of ARG Tacticals proposal, calls into question its SDVOSB status. The record shows that the agency reviewed ARG Tacticals quotation and SAM profile prior to award, and both showed that ARG Tactical represented that it was an SDVOSB. Nonetheless, the agency maintains that because it needs a minimum of 14 contracts, the number of SDVOSB concerns capable of performing the required work was insufficient to meet its needs. Nothing in the language of the VA Act supports the agencys position that in the context of multiple-award contracts, the VA Acts Rule of Two requires set asides only when there will be two or more SDVOSB or VOSB offers per contract. We recognize it is within the agencys discretion to determine the number of IDIQ contracts required to satisfy its needs. that the A/E shall visit proposed project site, as required . Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U. We conclude that the agencys market research and resulting set-aside decision were reasonable.

With respect to Crosstown's argument that the incumbent contract is priced below the cost of performance (which of course required Crosstown to make assumptions about the manner in which the incumbent is performing), an agency is not prohibited from entering into a contract that is below the cost of performance. Accordingly, Crosstown has not provided a basis for our Office to conclude that the IGCE was defective, or that the contracting officer acted unreasonably in using the IGCE to assess whether an SDVOSB (or VOSB) set-aside would reasonably result in fair and reasonable prices. B-415818: Mar 27, 2018) 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) .

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After considering DLAs response to the protest, our Office solicited the views of VA and SBA. (Spur Design, LLC B-412245.3: Feb 24, 2016) (pdf) FRM asserts that it was unreasonable for the agency to limit the market research to the local geographic area because, according to the protester, the majority of the support requirements for this contract will be performed at the contractors own facility. The agency responds that: it was necessary to limit . The agency initially searched only in Washington state and found that there were no SDVOSB firms under the relevant NAICS code that perform valet parking services. Kingdomware in its comments on the agency report did not rebut the agency's responses regarding the MOBIS reference or the social media notification capability requirement.

Both SBA and the Federal Acquisition Regulatory Council have implemented these statutory provisions in regulations, which state that an agency may not issue an SDVOSB sole-source award if the requirement can be satisfied using Federal Prison Industries, the JWOD Act, or is currently being performed under the authority of the SBAs 8(a) Business Development program. See Singleton Enters.-GMT Mech., A Joint Venture, B-310552, Jan. Since we conclude that the agencys decision not to set aside any of these contracts was inconsistent with the requirements set forth in the VA Act and its implementing regulations, we sustain the protest. market research to the states of Oregon, Washington and Idaho because the solicitation clearly stated under the heading Construction Period Services that site visits would be expected . As noted above, in conducting its market research, the agency used the NAICS code for parking lots and garages to search the Vet Biz database to identify potential SDVOSB firms, then researched the firms websites to determine whether the company performed valet parking services. With regard to setting aside procurements exclusively for veteran-owned small businesses (VOSBs) or SDVOSBs, 38 U.

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,[3] 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.

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.

Aero Sage challenges DLAs decision not to conduct this procurement as an SDVOSB set‑aside on two principal grounds. Second, Aero Sage alleges that it was improper for the contracting officer to decide that Aero Sage and Sage Care did not satisfy the VA Acts Rule of Two because they are owned by the same individual. In this regard, DLA describes the different types of market research the contracting officer performed, including her search in VAs VIP database for SDVOSBs registered in Wisconsin under the applicable NAICS code. With regard to the decision to limit the VIP database research to firms registered in Wisconsin, DLA points out that the procurement involved a small dollar value and a near-immediate delivery schedule. We believe it was reasonable for the contracting officer to posit that a firm whose service area did not include Wisconsin would not be expected to submit an offer for a purchase at this dollar level of approximately ,000. With regard to the contracting officers conclusion that due to common ownership, Aero Sage and Sage Care did not meet the VA Acts Rule of Two requirements, the SBA commented as follows: [D]uring a typical Rule of Two determination, an agency determines whether there is a reasonable expectation that the contract will be awarded at a fair market price. Given these facts, we do not find it unreasonable for the agency to determine that it lacked a reasonable expectation of receiving offers from two or more SDVOSBs and award would be made a fair and reasonable price. We first address the allegation regarding the sufficiency of DLAs market research. The agency considered the geographic location of each of these companies--Texas, Virginia, Pennsylvania, North Carolina, and South Carolina--and concluded that given their distance from the site of performance, there was not a reasonable expectation of receiving offers from two or more SDVOSB firms that would be capable of performing the required work at a reasonable price. Kingdomware asserts that the solicitation is defective in two other respects. Under the Veterans First Contracting Program, the VA has authority to award contracts using other than full and open competition (including set-aside procurements and sole-source awards) in certain circumstances.

See DNO Inc., B-406256, B-406256.2, March 22, 2012, 2012 CPD 136 at 4. Further, this Office has stated that an agency may issue an SDVOSB sole-source award even where another SDVOSB exists that could conceivably perform the contract, but has expressed no interest in the work. 28, 2007, 2007 CPD 55 at 7; see also Chicago Dryer Co., B-401888, Dec. 8127, and the VAs implementing regulations, VA Acquisition Regulation, 48 C. Further, as indicated above, the contract specialist, in a database search specifically directed by the contracting officer, found more than 127 profiles of SDVOSB concerns nationwide matching the criteria. Thus, it appears that had the agency expanded its market research beyond the VISN 20 region it would have discovered numerous SDVOSB A/E concerns doing fire protection work. B-411552: Aug 20, 2015) (pdf) IOVC asserts that the VA failed to perform sufficient market research to ascertain the interest and capability of SDVOSBs [service-disabled veteran-owned small business] to perform the requirement. 30, 2012, 2012 CPD 333 at 3; Buy Rite Transp., B-403729, B-403768, Oct. 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. but will not exceed ,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.

The agency responds that only one SDVOSB expressed an interest in a long term contract for the combat knives. The determination as to whether an agency expects two or more SDVOSBs to submit an offer is a matter of business judgment within the contracting officer's discretion that we will not disturb absent a showing that it was unreasonable. 819.7004, 819.7005, the VA is required to set aside acquisitions for [service-disabled veteran-owned small business] SDVOSBs whenever it determines that there is a reasonable expectation that offers will be received from at least two SDVOSB firms and that award can be made at a fair and reasonable price. Thus, the record here does not support the agencys determination to limit its market research to firms within the VISN 20 region. Crosstown Courier Serv., Inc., B-410936, March 12, 2015, 2015 CPD 107 at 4; Crosstown Courier Serv., Inc., B-407404, Nov.

Supplemental Protest at 3-5, citing to AR, Tab 5, Market Research, at 28-29. In this regard, when asked by our Office to respond to the protesters assertions, the agency did not specifically address the frequency of when the contractor would be required to visit the VA facilities, and instead noted only that the solicitation provides for site visits as required. Further, when the agency considered whether the solicitation should be restricted to A/E firms located within the VISN 20 region, the agency project engineer rejected setting a distance limit, proposing instead only that firms that are located closer should be rated higher. In any case, given that the VISN 20 region includes facilities in Washington, Oregon, Idaho, and Alaska, it seems likely that even A/E firms located within VISN 20 will be required to travel significant distances away from their office(s) for necessary site visits. The determination as to whether there is a reasonable expectation of receiving offers from two or more SDVOSB firms 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.

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.

In response to the allegation regarding the market research, DLA asserts that its market research was sufficient under the circumstances. Finally, in response to Aero Sages allegation regarding the contracting officers decision that the VA Acts Rule of Two had not been met, DLA states that because of the firms common ownership, the contracting officer did not view them to be independent. On this basis, VA requested that our Office deny the protest. SBA commented on DLAs market research as follows: [T]he agency limited its search to verified SDVOSBs that had Wisconsin included in their service area list. For the reasons that follow, we agree with DLA, VA, and SBA that Aero Sages protest should be denied. Finally, the agency removed all geographic restrictions and identified five other firms nationwide under the relevant NAICS code that perform valet parking services. Accordingly, it was not improper for the agency here not to set this requirement aside for SDVOSBs, and Kingdomware's arguments to the contrary provide no basis on which to sustain the protest. The agency further explains that the social media notification capability is useful for reaching employees when they are not in the workplace. Washington-Harris Group, B-401794, B-401794.2, Nov. Protest (B‑405492) at 1; Protest (B-405493) at 1; Comments at 1.

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