ViroMed Laboratories
Highlights
ViroMed Laboratories protests the decision by the Department of the Army to set aside for small business competition request for proposals (RFP) No. W81K04-06-R-0014, for Human Immunodeficiency Virus Type 1 (HIV-1) testing and reporting services. The protester contends that the contracting officer failed to make reasonable efforts to determine whether fair market price offers from two or more responsible small business concerns would be received.
B-298931, ViroMed Laboratories, December 20, 2006
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: ViroMed Laboratories
Thomas A. Schmutz, Esq., and Jennifer A. Bowen, Esq., Morgan, Lewis & Bockius LLP, for the protester.
Maj. ChristinaLynn E. McCoy, Department of the Army, and Laura Mann Eyester, Esq., Small Business Administration, for the agencies.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency failed to conduct adequate market research to determine appropriateness of small business set-aside by failing to verify the representations of small business offerors regarding their capabilities is denied; in the absence of evidence that small business sources had misrepresented their capabilities, it was reasonable for the contracting officer to rely upon these representations in making set-aside determination.
DECISION
ViroMed Laboratories protests the decision by the Department of the Army to set aside for small business competition request for proposals (RFP) No. W81K04-06-R-0014, for Human Immunodeficiency Virus Type 1 (HIV-1) testing and reporting services. The protester contends that the contracting officer failed to make reasonable efforts to determine whether fair market price offers from two or more responsible small business concerns would be received.
BACKGROUND
The RFP, which was issued on
Prior to issuing the solicitation, the contracting officer posted a sources sought notice on the FedBizOpps website. The notice furnished a comprehensive listing of the test procedures to be performed, estimated quantities, data management requirements, and contractor accreditation requirements. Thirteen businesses responded to the sources sought notice; 11 of the 13 firms furnished capability information, and of these 11, 9 were small businesses. The notice invited sources with the skills and capabilities to perform the stated requirement to furnish information regarding their capabilities. The contracting officer reviewed the responses received and conducted additional research through the Central Contractor Registration System and the Dynamic Small Business Search (DSBS) System. In addition, she contacted the companies that had responded and queried them regarding their capability to perform the information technology (IT) portion of the requirement. Based on the information that she gathered, the contracting officer concluded that there were at least three small businesses capable of performing the RFP's requirements. The contracting officer further concluded that since her research showed that HIV testing was offered and sold competitively in substantial quantities in the commercial marketplace, there was a reasonable expectation of award at a fair market price. Accordingly, the contracting officer concluded that the requirement should be set aside for small business competition.
The contracting officer conducted further market research at the time she completed DD Form 2519, Small Business Coordination Record. The research consisted of searching the DSBS system using the NAICS code assigned to the solicitation and the keyword HIV. The search yielded three small businesses, one of which was considered to be a possible additional source.[1]
The agency held a pre-proposal conference on
On September 12, ViroMed filed an agency-level protest objecting to the agency decision to set aside the acquisition for small business competition. By decision dated September 21, the contracting officer denied the protest. On October 3, prior to the closing date set for receipt of proposals, ViroMed protested to our Office.
DISCUSSION
Under Federal Acquisition Regulation (FAR) sect. 19.502-2(b), a procurement with an anticipated dollar value of more than $100,000, such as the one here, must be set aside for exclusive small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns and that award will be made at a fair market price. The use of any particular method of assessing the availability of small businesses is not required so long as the agency undertakes reasonable efforts to locate responsible small business competitors. National Linen Serv., B-285458,
The protester argues that the market research conducted by the contracting officer here was inadequate to support her conclusion that offers from at least two responsible small business concerns could reasonably be expected. ViroMed maintains in this regard that at a minimum, adequate market research required the contracting officer to determine whether each small business that responded to the sources sought notice had (1) appropriately equipped facilities, (2) an adequate number of personnel, (3) the capability to process up to 8,000 HIV tests per day, and (4) the ability to secure the required IT capability. The protester contends that rather than verifying the accuracy of sources' claims regarding their capabilities, the contracting officer simply accepted their self-serving assertions, which was insufficient.
While acknowledging that agencies are not required to make determinations regarding the responsibility of prospective sources in deciding whether to set aside an acquisition, Protester's Comments,
The market research performed by the contracting officer here clearly permitted her to make an informed business judgment that offers from multiple small businesses with the capability to perform the required volume of tests and to secure the required IT capability could reasonably be expected.[2] Regarding the protester's assertion that the contracting officer should not have accepted the self-serving claims of prospective offerors regarding their capabilities without verification, in the absence of evidence of misrepresentation, we do not think that such a level of scrutiny was required.
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] One of the other two firms was a firm that had responded to the sources sought notice (and thus had already been counted as a potential source), while the other was a supplier of test products, rather than a laboratory, and thus was not considered to be a potential source.
[2] In a