“DIGEST – Protest challenging the agency’s cancellation of a small business set-aside procurement in favor of an unrestricted competition is dismissed as untimely because a solicitation amendment put the protester on notice that any set-aside had been dissolved, and the protester did not timely challenge the agency’s decision to cancel the set-aside for small businesses.”
“BACKGROUND – The National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC), an office housed within the Department of Health and Human Services, National Institutes of Health (NIH), is authorized by the Office of Management and Budget to administer governmentwide acquisition contracts for information technology and supplies. Relevant here, NIH administers the Chief Information Officer-Solutions and Partners 3 (CIO-SP3) and CIO-SP3-Small Business (CIO-SP3-SB) contracts. The primary distinctions between the two contracts are the initial small business eligibility criteria for the CIO-SP3-SB contract, as well as the associated eligibility requirements and subcontracting limitations for orders set-aside for small businesses under the CIO-SP3-SB contract. Currently, there are 335 contract holders (including 39 firms that have graduated as small business concerns) of the CIO-SP3-SB contract, and 52 contract holders (including 2 small businesses) of the CIO-SP3 contract. See NIH Brief in B‑418682 at 1-2.
On March 25, 2020, DOL simultaneously issued two nearly identical solicitations in this procurement. Both RFPs shared the same DOL-issued solicitation number, as well as identical solicitation sections B, C, F, G, and J-M (and neither solicitation had sections D or E). The differences, therefore, were limited to solicitation sections A and I.
One solicitation was issued to holders of the CIO-SP3 contract (hereinafter, the “CIO-SP3 RFP”). The CIO-SP3 RFP’s section A cover page indicated that the procurement was unrestricted, and the clauses incorporated into section I did not indicate that any small business set-aside or preferences were applicable. Agency Report (AR) in B‑418682, Tab 1, CIO‑SP3 RFP at 1, 49-50. The CIO-SP3 RFP, however, incorporated FAR clause 52.219-14, Limitations on Subcontracting. Id. at 49. That clause, however, is used in solicitations set aside for small business concerns; it does not apply to an unrestricted procurement. See FAR clause 52.219-14(b). Additionally, the CIO-SP3 RFP’s section A schedule of supplies/services stated that “[t]his solicitation is ‘UNRESTRICTED’,” but also stated that “[North American Industry Classification System (NAICS)] Code 541513 may apply for this requirement,” and “[a]ny entity that does not meet this standard will be removed from consideration for award.” AR in B‑418682, Tab 1, CIO-SP3 RFP at 1-2 (emphasis added).
The second solicitation was issued to holders of the CIO-SP3-SB contract (hereinafter, the “CIO-SP3-SB RFP”). The CIO-SP3-SB RFP’s section A cover page indicated that the procurement was set-aside for small businesses, and the section A schedule of supplies/services stated that “NAICS Code 541512 may apply for this requirement,” and that “[a]ny entity that does not meet this standard will be removed from consideration for award.” AR in B-418682, Tab 2, CIO-SP3-SB RFP at 1-2 (emphasis added). As with the CIO-SP3 RFP, section I incorporated FAR clause 52.219-14, Limitations on Subcontracting, but similarly did not include any of the FAR’s small business set-aside or preference clauses. Id. at 49-50.
On April 20, DOL issued a single, identical set of vendor questions and answers as amendment 1 to the respective RFPs. Relevant here, DOL responded to several questions regarding the applicability of size limitations and how the agency intended to evaluate proposals and make a single award where it appeared to have simultaneously issued a small business set-aside RFP and an unrestricted RFP for the same requirement. In questions and answers 1 and 2, DOL confirmed that offerors holding a CIO-SP3-SB contract would need to meet the applicable size standard to be eligible for award. Req. for Dismissal, attach. B, RFP, amend. No. 1, Questions and Answers 1-2. In contrast, DOL made clear that no size standard was applicable to offerors holding a CIO-SP3 contract….”
“DISCUSSION – Candor challenges the agency’s cancellation of the CIO-SP3-SB RFP, and decision to proceed with the procurement limited to the CIO-SP3 contract holders. The protester first contends that the CIO-SP3-SB RFP had been set aside for small businesses, and therefore DOL could only cancel the solicitation in accordance with the requirements of FAR 19.502-9. Candor alleges that DOL failed to make the requisite findings and coordinate with the appropriate DOL and Small Business Administration authorities prior to cancellation. The protester also challenges the agency’s decision to proceed with the procurement limited only to CIO-SP3 contract holders. Candor alleges that the procurement should be set-aside for small business concerns.
DOL seeks dismissal of Candor’s protest, arguing that Candor’s challenges are based on the incorrect factual predicate that this procurement was set aside for small business concerns. Specifically, DOL argues that it should have been apparent to the protester no later than the issuance of amendment 1 to both solicitations that the agency did not intend to set aside in whole or in part this procurement for small business concerns when it specifically notified offerors that the agency was simultaneously soliciting proposals from both small and unrestricted businesses and would make a single best- value determination. DOL, therefore, argues that the protester’s challenges at this time that the agency is not complying with the rules applicable to small business set-aside procurements are effectively untimely challenges to the agency’s prior notice to offerors that the agency was not setting this procurement aside for small business concerns.
Candor opposes dismissal. The protester primarily asserts that its protest does not challenge the agency’s decision to issue solicitations under two different contract vehicles, but rather challenges the agency’s decision to cancel the small business set-aside RFP. Candor argues that the CIO-SP3-SB RFP, regardless of whether DOL intended to do so, was set aside for small business concerns, and the agency never adequately conveyed to offerors that it was withdrawing or modifying the set-aside status of the procurement until the agency cancelled the CIO-SP3-SB RFP.
In what appears to be an alternative argument, Candor also contends that, even if amendment 1 suggested that the procurement was not set aside for small businesses, the protester reasonably understood that DOL “intended to compete this procurement using the CIO-SP3 Small Business [contract] and that small business awards would be, at the very least, prioritized, because the agency was moving forward under the [CIO-SP3-SB RFP] and the [CIO-SP3-SB RFP] was not amended to remove the small business set aside language.” Opp. to Req. for Dismissal at 3-4….”
“DECISION – Candor Solutions, LLC, a small business of Leesburg, Virginia, protests the cancellation of request for proposals (RFP) No. 1605DC-20-R-00021, which was issued by the Department of Labor (DOL), for the issuance of a task order to operate, maintain, and manage the Job Corps Data Center in Austin, Texas. Candor alleges that the cancellation of the solicitation, which it contends was set-aside for small business concerns, was improper because the agency failed to comply with the requirements in Federal Acquisition Regulation (FAR) 19.502‑9 for withdrawing or modifying a small business set-aside procurement. The protester also contends that the agency’s decision to cancel the small business set-aside procurement, and decision to procure the required services on an unrestricted basis, violated the agency’s obligation to give priority to small business set-asides pursuant to FAR 19.203, and circumvented the agency’s own market research and “rule of two” analysis pursuant to FAR 19.502-2(b).
We dismiss the protest because the protester’s allegations are untimely.”
G2X TAKE: The lone known remaining active protest related to an RFP issued by the Department of Labor (DOL), for the issuance of a task order to operate, maintain, and manage the Job Corps Data Center in Austin, Texas has been dismissed due to the protester’s allegations being deemed as untimely.