BioneX, LLC

Decision

Matter of: BioneX, LLC

File: B-423630

Date: July 25, 2025

DIGEST

Protest alleging that agency failed to apply a historically underutilized business zone price evaluation preference to the protester’s quotation is dismissed where the solicitation failed to establish such a preferential evaluation scheme.

BioneX, LLC, a historically underutilized business zone (HUBZone) small business of South Fulton, Tennessee, protests the award of a contract to BFrench Consulting, LLC, of Cape Coral, Florida, under request for quotations (RFQ) No. FA568225Q8004, issued by the Department of the Air Force for certified strength and conditioning specialist services in support of the 57th Rescue Squadron at Aviano Air Base in Italy. The protester contends that the agency improperly failed to apply a HUBZone price evaluation preference, pursuant to Federal Acquisition Regulation (FAR) clause 52.219-4, while evaluating BioneX’s quotation.

We dismiss the protest because, as filed with our Office, it does not establish a valid basis for challenging the agency’s action.

BACKGROUND

The agency issued the RFQ on December 12, 2024, using the commercial acquisition procedures of FAR part 12, and the simplified acquisition procedures of FAR subpart 13.5. Agency Req. for Dismissal, attach. A, RFQ at 1. The solicitation anticipated award on a best-value tradeoff basis “to [a] responsible [vendor] whose quot[ation] meets or exceeds the requirements outlined in this solicitation and is most advantageous to the Government,” based on price and technical capability[1] evaluation factors. Id., attach. C, RFQ Evaluation Factors at 1-2.

With respect to price, the RFQ advised that the agency would evaluate the fairness and the reasonableness of the total evaluated price. Id., attach. C, at 3. The Air Force was also to analyze separately priced contract line items to determine if the prices were unbalanced. Id.

As relevant to this protest, among the various provisions, clauses, and contract terms in the solicitation that were marked as applying to this procurement, the RFQ did not include a marked box next to FAR clause 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns. Id., attach. D, RFQ Clauses and Provisions at 29.

After evaluating quotations, the agency determined that BFrench Consulting provided the best value to the government and notified the protester of its determination. Id., attach. E, Email Correspondence at 1-2. In response, BioneX inquired about the agency’s failure to apply a 10 percent price discount, on the basis of FAR clause 52.219-4, in the evaluation of BioneX’s price. Id. The Air Force explained that the clause was not applicable to the instant solicitation because it only applied to “acquisitions conducted within the United States,” and not, as here, where “the service[s were to] be performed outside the United States.” Id. at 2.

This protest followed.

DISCUSSION

BioneX argues that the Air Force improperly failed to apply a HUBZone price evaluation preference in its evaluation of Bionex’s proposed price. Protest at 1-2. The protester disputes the agency’s explanation that FAR clause 51-219.4 does not apply to overseas procurements, contending that such an “interpretation ignores clear regulatory language and established GAO case law.” Id. at 1. Conceding that the clause was not specifically included in the RFQ, BioneX claims that where “the contracting officer does not affirmatively waive the HUBZone price evaluation preference, the clause operates by default.” Resp. to Req. for Dismissal at 2. The protester also contends that in a related procurement, the Air Force similarly “omitted” FAR clause 52.219-4 from the solicitation but still applied a “HUBZone [p]rice [p]reference [d]iscount” to BioneX’s price quotation, resulting in the protester receiving the award. Id. at 1.

The agency and the intervenor contend that the protester’s arguments are based on factual misrepresentations and warrant dismissal.[2] See Agency Req. for Dismissal at 3; Intervenor Req. for Dismissal at 1. Specifically, they allege that the protester cannot assert a violation of FAR clause 52.219-4 because the solicitation did not include the provision. Id. The Air Force also adds that “where. . . the Agency was not required to include such provision, BioneX has not and cannot successfully allege that the Agency violated any applicable law or regulation.” Agency Req. for Dismissal at 3. The agency thus argues that the protest fails to meet the minimum requirements for a legally and factually sufficient protest under our Bid Protest Regulations. Id.

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 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.

Here, we find that BioneX has not provided a detailed statement of the legal and factual grounds for its protest. Although the protester alleged that the agency should have applied a HUBZone price evaluation discount of 10 percent to BioneX’s proposed price, the relevant FAR clause 52.219-4 was not included in the solicitation.[3] While BioneX also claims that nevertheless, “th[at] clause operates by default,” Resp. to Req. for Dismissal at 2, the protester does not accurately[4] cite to any legal authority to support this contention. In short, the protester fails to provide specific supporting facts or documentation to explain the assertion that the agency violated applicable procurement laws or regulations.

Last, we find no merit to the protester’s assertion that the agency’s alleged application of a HUBZone price evaluation preference to BioneX’s price on a related procurement necessitated the Air Force doing the same here. What an agency did or did not do on a related procurement is effectively immaterial since “each procurement stands on its own, such that an agency’s actions during one acquisition have no bearing on its actions in another acquisition.” Shertech Pharmacy Piedmont, LLC--Recon., B-419069.2, Apr. 1, 2021, 2021 CPD ¶ 134 at 2.

The protest is dismissed.

Edda Emmanuelli Perez
General Counsel