Mission Analytics, LLC
Highlights
Mission Analytics, LLC, a small business of Falls Church, Virginia, protests the issuance of a purchase order to Visbox, Inc., a small business of Saint Joseph, Illinois, under request for quotations (RFQ) No. 1333ND24QNB770135, issued by the Department of Commerce, National Institute of Standards and Technology (NIST) for a direct view light-emitting diodes display system. The protester contends that the agency violated Federal Acquisition Regulation (FAR) section 33.103(f) by issuing the purchase order while the protester's agency-level protest was pending.
Decision
Matter of: Mission Analytics, LLC
File: B-422841.3
Date: December 11, 2024
Michael F. Winters, for the protester.
Jonathan S. Baker, Esq., Department of Commerce, for the agency.
Michelle Litteken, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest alleging the agency issued a purchase order while an agency-level protest was pending is dismissed as legally insufficient where there was no agency-level protest pending at the time of award, and because failing to stay award is a procedural defect that does not result in competitive prejudice.
DECISION
Mission Analytics, LLC, a small business of Falls Church, Virginia, protests the issuance of a purchase order to Visbox, Inc., a small business of Saint Joseph, Illinois, under request for quotations (RFQ) No. 1333ND24QNB770135, issued by the Department of Commerce, National Institute of Standards and Technology (NIST) for a direct view light-emitting diodes display system. The protester contends that the agency violated Federal Acquisition Regulation (FAR) section 33.103(f) by issuing the purchase order while the protester’s agency-level protest was pending.
We dismiss the protest.
BACKGROUND
NIST issued the RFQ as a small business set-aside on May 7, 2024, to procure an equipment upgrade for NIST’s High Performance Computing and Visualization Group. Req. for Dismissal at 2; Req. for Dismissal, attach. 1, Contracting Officer Decl. ¶ 1. The RFQ did not include FAR clause 52.219-33, Nonmanufacturer Rule.[1] See Mission Analytics, LLC, B-422841, Req. for Dismissal, attach. 3, RFQ Applicable Provisions and Clauses.
On May 8, Mission Analytics emailed the contracting officer, objecting to the NAICS code assigned to the RFQ; the omission of FAR clause 52.219-33, Nonmanufacturer Rule, from the RFQ; and the agency’s use of a nonmanufacturer rule class waiver. Resp. to Req. for Dismissal, attach. 1, May 2024 Agency-Protester Emails at 3.[2] The protester asked the agency to amend the RFQ. Id.
Subsequently, on May 17, Mission Analytics filed an appeal with the SBA, Office of Hearings and Appeals (OHA), challenging the NAICS code assigned to the RFQ and NIST’s inclusion of the nonmanufacturer rule class waiver. Req. for Dismissal at 2; Resp. to Req. for Dismissal at 2. On July 24, OHA issued a decision denying the protester’s appeal. NAICS Appeal of: Mission Analytics, LLC, SBA. No. NAICS-6298, July 24, 2024, 2024 SBA LEXIS 85.
On July 24, after OHA issued its decision, Mission Analytics emailed the contracting officer and requested a meeting to discuss the nonmanufacturer rule class waiver. Protest, attach. 3, July 2024 Agency-Protester Emails at 6. The contracting officer responded on July 26, pointing out that in its decision, OHA did not question the agency’s use of the nonmanufacturer rule class waiver, and noting that the agency regarded the class waiver as “applicable and appropriate.” Id. at 5. The protester responded by email the same day, disagreeing with NIST’s interpretation of OHA’s decision and repeating its opinion that NIST was improperly using a nonmanufacturer rule class waiver for the procurement. Id. at 1-3.
The protester did not submit a quotation; the solicitation closed on August 6. Req. for Dismissal at 4; Resp. to Req. for Dismissal at 5. On September 11, NIST issued the purchase order to Visbox.[3] This protest followed.[4]
DISCUSSION
Mission Analytics argues that NIST violated FAR section 33.103(f)[5] by issuing the purchase order while the protester’s agency-level protest was pending. We dismiss the protest because the record demonstrates that there was no pending agency-level protest at the time of award, and, in any event, any failure by the agency to comply with the FAR provision is a procedural defect that did not competitively prejudice the protester.
The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3557. 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, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency action. Midwest Tube Fabricators, Inc., B-407166, B-407167, Nov. 20, 2012, 2012 CPD ¶ 324 at 3.
Moreover, it is well established that prejudice is an essential element of every viable protest, and we will not sustain a protest absent a showing of prejudice, even if the agency’s actions are arguably improper. MFL Consulting, B-417939, B-417939.2, July 19, 2018, 2019 CPD ¶ 395 at 5; see also Jensco Marine, Inc., B-278929.7, Feb. 11, 1999, 99-1 CPD ¶ 32 at 3 (GAO will not sustain a protest of an agency’s failure to comply with pre-award notification requirement absent prejudice to the protester). Our Office will dismiss a protest as legally insufficient where the allegation fails to demonstrate prejudice. Eagle Hill Consulting, LLC, B-421938.2, B-421938.3, Dec. 20, 2023, 2023 CPD ¶ 288 at 9 n.7; Criterion Sys., Inc., B-419749 et al., July 21, 2021, 2021 CPD ¶ 261 at 13.
Here, Mission Analytics alleges that NIST violated the FAR by issuing the purchase order while its agency-level protest was pending. Mission Analytics elaborates that the “[contracting officer] took no action to acknowledge or resolve the protest.” Protest at 1.
As an initial matter, we disagree with the protester’s assertion that NIST issued the purchase order while the protester’s agency-level protest was pending. In the context of a pre-award agency-level protest, our Office has stated that where the contracting activity proceeds with receipt of quotations or proposals, the protester is on notice that the contracting activity will not undertake the requested corrective action. See, e.g., DAI, Inc., B‑408625, B-408625.2, Nov. 6, 2013, 2013 CPD ¶ 259 at 3. Here, when the contracting officer proceeded with the procurement using the class waiver without amending the solicitation, that constituted adverse agency action taken in response to the protest.
As noted above, when the protester repeated its objections to the nonmanufacturer rule class waiver after OHA issued its decision, the contracting officer pointed out to Mission Analytics that OHA did not take exception to the nonmanufacturer rule class waiver. Protest, attach. 3, July 2024 Agency-Protester Emails at 5. NIST then amended the RFQ to change the submission deadline to September 6, and it moved forward with the procurement without removing the nonmanufacturer rule class waiver. Req. for Dismissal, attach. 1, Contracting Officer Decl. ¶ 1. In other words, the contracting officer resolved Mission Analytics’s protest by rejecting Mission Analytics’s argument; conveying to the protester its disagreement with Mission Analytics’s position; and proceeding with the procurement without undertaking the requested corrective action. On this record, we find Mission Analytics’s agency-level protest was not pending when NIST issued the purchase order.
Furthermore, assuming, for the sake of argument, that NIST was required to stay contract award pursuant to FAR section 33.103(f), we would still dismiss the protest because an alleged violation of that FAR section does not provide a legally sufficient basis of protest.
Our Office has previously stated that an agency’s failure to suspend performance in accordance with FAR section 33.103(f) is a procedural defect that does not affect the validity of an award and therefore does not provide a basis to sustain a protest. Aurora Storage Prods., B‑415628, Dec. 1, 2017, 2017 CPD ¶ 371 at 4 n.3; Military Agency Servs. Pty, Ltd., B‑290414 et al., Aug. 1, 2002, 2002 CPD ¶ 130 at 8. These decisions are grounded in the principle that competitive prejudice is an essential element of a viable protest. To elaborate, where an agency fails to comply with FAR section 33.103(f), a protester is generally not prejudiced, as the agency’s noncompliance does not prevent the protester from filing a protest with the appropriate forum.
Here, the protester has not demonstrated that it was prejudiced by the agency’s alleged violation of FAR section 33.103(f). The protester states that a protest challenging the waiver of the nonmanufacturer rule--the subject of its agency-level protest--may only be brought to the SBA, and it cannot be raised until after award. Protest at 2-4 (citing 4 C.F.R. § 21.5(b); Size Appeal of: Cypher Analytics, Inc. d/b/a Crown Point Sys., SBA No. SIZ-5986, Feb. 19, 2019, 2019 SBA LEXIS 3). Assuming, for the sake of argument, that NIST failed to comply with FAR section 33.103(f), Mission Analytics was not prejudiced because NIST’s actions did not prevent the protester from filing a protest with SBA challenging the nonmanufacturer rule class waiver after the purchase order was issued.[6] See Jensco Marine, supra. Accordingly, we find Mission Analytics’s protest does not demonstrate competitive prejudice, and it is therefore legally insufficient.
The protest is dismissed.
Edda Emmanuelli Perez
General Counsel
[1] Ordinarily, when a procurement that has an assigned manufacturing or supply North American Industry Classification System (NAICS) code is set aside for small business, a small business vendor must be the manufacturer or producer of the end item being procured to be eligible to provide manufactured products or other supply items under the procurement. 13 C.F.R. § 121.406(a)(1). If the offeror does not manufacture the item being purchased, the “nonmanufacturer rule” provides that the offer of a nonmanufacturer small business concern can be considered if the small business offeror, among other things, represents that it will supply the product of a domestic small business manufacturer or processor, or that a waiver of this requirement is granted by the Small Business Administration (SBA). 13 C.F.R. § 121.406(b). Section 19.507(h) of the FAR provides that FAR clause 52.219-33, Nonmanufacturer Rule, should be included when the item being acquired has been assigned a manufacturing or supply NAICS code and any portion of the requirement is to be (1) set aside for small business and is expected to exceed the simplified acquisition threshold or (2) set aside or awarded on a sole-source basis. The FAR also states that the contracting officer shall not include FAR clause 52.219-33, Nonmanufacturer Rule, where the SBA has waived the nonmanufacturer rule. FAR 19.507(h)(2).
[2] Citations to documents without pagination refer to the Adobe PDF page numbers.
[3] The agency suspended issuance of the purchase order pending the protester’s prior protest to our Office, docketed as B-422841. In that protest, Mission Analytics argued that the agency failed to include FAR provision 52.204-22, Alternative Line Item Proposal, in the RFQ. On September 6, we dismissed the protest because the allegations were incorrect as a matter of law and did not constitute a valid basis of protest. Mission Analytics, LLC, B-422841, Sept. 6, 2024 (unpublished decision).
[4] We note that here, the basis of the protest presented to our Office is the agency’s decision to make award while Mission Analytics’s agency-level protest was pending--and not the agency’s inclusion of the nonmanufacturer rule waiver in the RFQ. Accordingly, the closing of the solicitation and receipt of quotations does not constitute an adverse agency action for purposes of establishing timeliness under our Bid Protest Regulations. See 4 C.F.R. § 21.0(e).
[5] This section of the FAR provides generally that upon receipt of an agency-level protest prior to award, an agency may not award a contract pending resolution of the agency-level protest.
[6] We note that Mission Analytics did not submit a timely quotation, and its failure to do so may impede its ability to qualify as an interested party to challenge the award. See Req. for Dismissal at 4; Resp. to Req. for Dismissal at 5. Mission Analytics asserts that the agency’s failure to respond to its agency-level protest “impact[ed] [its] ability to formulate and submit a quote for the RFQ.” Protest at 4. To the extent that the protester claims that it was prejudiced by NIST’s alleged failure to respond to the agency-level protest, we disagree because it is undisputed that Mission Analytics was eligible to compete under the terms of the RFQ. Protest, attach. 3, July 2024 Agency-Protester Emails at 5.