Native American Construction Services, LLC

B-415386,B-415386.2: Jan 2, 2018

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Native American Construction Services, LLC (NAC), a small business located in Independence, California, protests the terms of invitation for bids (IFB) No. 40343964, issued by the Department of the Interior, Bureau of Land Management (BLM), for the procurement of wild horse and burro feeding services. NAC argues that it was improper for the solicitation to use simplified procedures for the acquisition of commercial items because the solicited services do not constitute a "commercial item." The protester also challenges the agency's decision to use FedBid for the solicitation of services.

We dismiss the protest.

Decision

Matter of:  Native American Construction Services, LLC

File:  B-415386; B-415386.2

Date:  January 2, 2018

John W. Bracken, Native American Construction Services, LLC, for the protester.
Brian A. Quint, Esq., Department of the Interior, for the agency.
Heather Weiner, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that agency improperly conducted procurement using simplified commercial item procedures and policies is dismissed as untimely where issue was not raised in prior agency-level protest.

2.  Protest challenging agency's use of FedBid for the solicitation is dismissed where protester's allegations fail to assert a violation of procurement statute or regulation.

DECISION

Native American Construction Services, LLC (NAC), a small business located in Independence, California, protests the terms of invitation for bids (IFB) No. 40343964, issued by the Department of the Interior, Bureau of Land Management (BLM), for the procurement of wild horse and burro feeding services.  NAC argues that it was improper for the solicitation to use simplified procedures for the acquisition of commercial items because the solicited services do not constitute a "commercial item."  The protester also challenges the agency's decision to use FedBid for the solicitation of services.

We dismiss the protest.

BACKGROUND

The IFB, issued as a combined synopsis/solicitation, was posted on the FedBizOpps website[1] on June 27, 2017, pursuant to the commercial item acquisition procedures of Federal Acquisition Regulation (FAR) part 12.[2]  The solicitation was set aside for small businesses, and sought wild horse and burro feeding services for the BLM Ridgecrest Corral Facility in Ridgecrest, California. 

The solicitation notified potential bidders that BLM intended to "conduct an online competitive reverse auction to be facilitated by the third-party reverse auction provider, FedBid, Inc."  IFB at 2.  The solicitation informed bidders that they "MUST submit the pricing portion of their bid using Fed[B]id" and that there was "no cost to register."  Id.  As indicated in the FedBizOpps posting, the solicitation was also posted to FedBid.  Id. at 1. The amended end date for the reverse auction was August 18, 2017.  Id.; Contracting Officer (CO) Statement at 1. 

On August 16, prior to the end date for the reverse auction, NAC, the incumbent contractor for the requirement, filed a timely agency level protest, challenging the terms of the solicitation.  Agency Report (AR), Tab 2, Agency Protest (Aug. 16, 2017), at 1-2.  Specifically, NAC argued that the solicitation was "unduly restrictive" because it "included contract terms that are inconsistent with customary commercial practices."  Id. at 1.  NAC also asserted that the statement of work (SOW) was "ambiguous and [did] not allow for clear analysis of the work to be performed."  Id.  In addition, NAC contended that the agency's use of the simplified acquisition procedure, under FAR § 13.003(c), was inappropriate because the total contract value was likely to exceed $150,000.  Finally, the protester argued that the agency's use of FedBid was inappropriate because it would force the successful bidder "into a partnership with FedBid" and would require the successful bidder to remit monthly a "3% value added to the contract," which the protester asserted, "would require the contractor to provide payment to [FedBid] on a monthly basis (60) times over the life of the contract."  Id.

On August 18, the reverse auction closed, and as relevant here, the agency received a bid from Stephey Livestock Services.  CO Statement at 1.  NAC did not submit a bid in response to the IFB. 

On September 21, the agency denied NAC's protest.  On that same day, the agency awarded a contract to Stephey Livestock Services.  CO Statement at 1.  With regard to NAC's protest, the agency responded that the protester's argument--that the solicitation was unduly restrictive because it included contract terms that were inconsistent with customary commercial practices--"is an incorrect statement as the RFQ was solicited using FAR Part 12 procedures."  Agency Decision (Sept. 17, 2017), at 1.  The agency also disagreed that the SOW was ambiguous, explaining that it had been written by the Ridgecrest Wild horse and Burros Corrals' manager, and then reviewed by the Solicitors office for clarity.  Id.  The agency further noted that vendors were provided an opportunity to submit questions through FedBid, and that NAC, in fact submitted questions, to which the agency responded.  Id.  With regard to the assertion that the agency was limited from using simplified acquisition procedures because the contract value would exceed $150,000, the agency pointed to FAR sections 12.203 and 13.003(c), which the agency noted, permits the use of simplified procedures for acquisitions of commercial items "exceeding the simplified acquisition threshold but not exceeding $7 million ($13 million for acquisitions as described in 13.500(c)."  Id.  Finally, with regard to FedBid, the agency explained that FedBid [does not] charge subscription fees to Buyers or Sellers."  Id. at 3.  Rather, "[t]he system adds an equal percentage transaction fee to all Sellers' bids prior to the submission to the Buyer," and "[w]hen the Buyer makes an award to a Seller, Fed[B]id will collect the included fee from that Seller."  Id.

On September 28, NAC filed the instant protest with our Office.  On October 19, the agency notified our Office, and NAC, that it had executed a determination and findings (D&F) to override the automatic statutory stay, on the basis of urgent and compelling circumstances "stemming from the risk of injury or death to the approximately 600 wild horses and burros relying on the services at issue."  AR, Tab 6, D&F, at 2.  On October 25, NAC filed a supplemental protest with our Office, challenging the agency's failure to provide notice of its decision to continue performance during the pendency of its protest.  The protester noted that, prior to the agency's October 19 notice regarding the D&F, NAC was not aware that the contract had been awarded.  Supp. Protest at 1; Protester's Comments at 3. 

DISCUSSION

NAC argues that it was improper for the solicitation to use simplified FAR procedures for the acquisition of commercial items because the solicited services--the feeding of wild horses and burros--do not constitute a "commercial item."  Protester's Comments at  2.  The protester also challenges BLM's determination to use FedBid for the solicitation of services, arguing that it "forces the contractor interested in doing business with the government" into an "unsolicited business arrangement" with a "for[-]profit corporation."[3]  Comments at 2.  As discussed below, we find that the first argument is untimely.  We conclude that the second argument lacks a valid basis of protest.  We dismiss the protest for these reasons.

NAC first argues that it was improper for the solicitation to use simplified procedures for commercial items because the solicited services do not constitute a "commercial item."  Protester's Comments at 2.  Specifically, the protester maintains that the services are not commercial services because "[t]he feeding of [w]ild [h]orses and [b]urros is a unique specialized service with inherent dangers."  Comments at 2.  The agency requests dismissal of this argument as untimely, noting that it was not one of the issues raised by NAC in its agency-level protest.  In response, the protester asserts that this argument is "not a new" issue, but rather, "further define[s] and sharpen[s] [one] of the issues raised" in the agency-level protest.  We disagree, and as discussed below, dismiss this argument as untimely.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. Coulson Aviation (USA), Inc., B-411525, B-411525.2, Aug. 14, 2015, 2015 CPD ¶ 272 at 5.  They specifically require that protests based upon alleged improprieties in a solicitation that are apparent prior to bid opening or the closing time for receipt of initial proposals are required to be filed before that time.  4 C.F.R. § 21.2(a)(1); A&T Sys., Inc., B-401701, B-401701.2, Nov. 12, 2009, 2010 CPD ¶ 8 at 5.  A limited exception to this rule exists when a protester has filed a timely agency-level challenge to a solicitation, and receives an unfavorable answer.  Masai Techs. Corp., B-400106, May 27, 2008, 2008 CPD ¶ 100 at 3.  In such instances, any subsequent protest on the same issue to our Office will be considered if it is filed within 10 days of actual or constructive knowledge of initial adverse agency action.  4 C.F.R. § 21.2(a)(3).

As relevant here, NAC's agency-level protest asserted: 

The use of the Simplified Acquisition Procedure is inappropriate for this solicitation; under FAR 13.003(c) the agency shall not use the simplified acquisition method if the value will exceed $150,000.00 total contract value including option years.

AR, Tab 2, Agency Level Protest (Aug. 16, 2017), at 1.  As the record reflects, NAC's agency-level protest challenged the use of simplified procedures based on contract value.  See also id. at 1 ("Even a rudimentary evaluation of this solicitation would reveal that a legitimate comprehensive bid that included all the Fair Labor Standards and Insurance requirements for work on a government facility over the (5) year life of the contract would exceed the level established under FAR 13.000.").  It did not, however, in any way argue, or attempt to demonstrate, that the services themselves were not a "commercial item."  Id. at 1-2.  Rather, NAC's protest to our Office was the first time that NAC alleged that it was improper for the solicitation to employ simplified commercial item procedures because the solicited services--the feeding of wild horses and burros--do not constitute a "commercial item."  Protest at 1; Protester's Comments at 2.  Since this argument was not raised in NAC's agency-level protest, it is not timely filed.[4]  4 C.F.R. § 21.2(a)(3).  Accordingly, this protest ground is dismissed.

The protester next argues that BLM's use of FedBid for the solicitation is improper because the government is requiring the successful contractor to "take direction" from "a private party" acting for the government, and forces a "default business relationship" between FedBid and the successful contractor, whereby the contractor is required to "remit payment to [FedBid]," as well as comply with reporting requirements to the Internal Revenue Service.  Comments at 2. 

The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3556. Our role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met.  Cybermedia Techs., Inc., B-405511.3, Sept. 22, 2011, 2011 CPD ¶ 180 at 2. To achieve this end, our Bid Protest Regulations, 4 C.F.R. § 21.1(c)(4) and (f), require that a protest include a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient.  These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient for our Office to reasonably conclude that a violation of procurement statute or regulation has occurred.  Mare Island Dry Dock, LLC, B-410821, Feb. 26, 2015, 2015 CPD ¶ 100 at 6.

Although NAC lists many features that it dislikes about FedBid, the protester does not assert, or otherwise demonstrate, how the agency's use of FedBid for this procurement results in any alleged violation of procurement statute or regulation.  Accordingly, we dismiss this allegation because the protester has failed to establish a valid basis of protest.

The protest is dismissed.

Thomas H. Armstrong
General Counsel



[1] The FedBizOpps website, www.fbo.gov, is the government-wide point of entry for the electronic publication of notices.  FAR §§ 2.101, 5.003, 5.101, 5.201.

[2] The contracting officer explains that the agency decided to conduct this procurement under the procedures in FAR part 12 because "the previous award [to NAC] was solicited under FAR [p]art 12 and several other horse feed awards were also solicited with the same procedures."  CO Statement at 2.  Specifically, the Contracting Officer points to horse feed awards for the Delta Wild Horse Corrals in Utah, and the Palomino Valley Corrals in Nevada.  Id.

[3] The protester raises other collateral arguments that are not discussed in this decision. We have reviewed all of the protester's allegations and conclude that they are without merit.  For example, the protester asserts that, because the contract will be subject to the Service Contract Labor Standards, the solicitation improperly failed to include FAR clause 52.222-41.  The record reflects, however, that both the solicitation and contract award included FAR clause 52.212-5 (Contract terms and conditions required to implement statutes or executive orders - commercial items).  IFB at 3; AR, Tab 5, Contract at 15.  This clause incorporates, among others, FAR clause 52.222-41 (Service Contract Labor Standards).  As another example, the protester asserts that the agency's failure to provide notice of its decision to continue performance during the pendency of this protest was an abuse of process.  The agency's omission in this regard does not impact the legality of the award.  National Med. Diagnostics, Inc., B-232238, Dec. 2, 1988, 88-2 CPD ¶ 553 at 4 n.3 ("Since the agency has informed us of its written determination to go forward with performance, it has complied with its statutory obligation.").  Accordingly, we find no basis to sustain the protest.

[4] In any event, even assuming that this ground of protest were timely, NAC has not presented any basis on which we can conclude that the agency's actions would have prejudiced the protester.  Competitive prejudice is a required element of every viable protest, and where none is shown, we will not sustain a protest.  WKF Friedman Enters., B-411208, June 16, 2015, 2015 CPD ¶ 183 at 3; CWTSatoTravel, B-404479.2, Apr. 22, 2011, 2011 CPD ¶ 87 at 12.  In the context of a protest challenging the terms of a solicitation, competitive prejudice occurs where the challenged terms place the protester at a competitive disadvantage or otherwise affect the protester's ability to compete.  Global Solutions Network, Inc., B-298682, Nov. 27, 2006, 2006 CPD ¶ 179 at 3.  With respect to a procurement for services that allegedly do not meet the definition of a commercial item, our Office will deny a protest where the protester does not claim that any of the provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, and does not show that the use of commercial item procedures otherwise prejudiced the protester's competitive position.  Id.; Johnson Controls World Servs., Inc., B-285144, July 6, 2000, 2000 CPD ¶ 108 at 3.  Here, although NAC asserts that it suffered prejudice because the solicitation generally did not "allow for . . . proper pricing components," the protester does not claim that any of the provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, nor has NAC shown that the use of any commercial item provisions or procedures otherwise prejudices the firm's competitive position.  Comments at 2. 

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