Fidelity Contract Flooring, LLC

Decision

Matter of: Fidelity Contract Flooring, LLC

File: B-423730

Date: September 30, 2025

DIGEST

Protest that awardee was ineligible for award because its System for Award Management record did not list the solicitation’s North American Industry Classification System code is denied where record shows the contracting officer reasonably determined that the awardee was eligible under the solicitation.

Fidelity Contract Flooring, LLC, a service-disabled veteran-owned small business (SDVOSB) of Oceanside, California, challenges the agency’s award of a contract to VA‑TRAK, LLC, an SDVOSB of Miller, South Dakota, under request for quotations (RFQ) No. 36C26225Q0744, issued by the Department of Veteran Affairs (VA) for vinyl flooring materials. The protester contends that VA-TRAK is ineligible to receive the award because it failed to include the solicitation’s North American Industry Classification System (NAICS) code in its profile located in the System for Award Management (SAM) database.

We dismiss the protest in part and deny the protest in part.

BACKGROUND

On April 2, 2025, the agency issued the solicitation for vinyl flooring material, equivalent to the brand Mannington Commercial, for the VA greater Los Angeles healthcare system located in Los Angeles, California. Agency Report (AR), Exh. 2, RFQ at 2.[1] The RFQ contemplated the award of a fixed-price contract using the procedures of Federal Acquisition Regulation (FAR) part 12, Acquisition of Commercial Products and Commercial Services, and FAR part 13, Simplified Acquisition Procedures. Id.

As relevant to this protest, the VA set aside this procurement for eligible SDVOSB concerns pursuant to the VA Veterans First Contracting Program, 38 U.S.C. §§ 8127- 8128, as implemented in subpart 819.70 of the VA Acquisition Regulation (VAAR). RFQ at 33; Memorandum of Law (MOL) at 3. For total set-aside acquisitions under this program, solicitations were required to include VAAR clause 852.219‑73, VA Notice of Total Set-Aside for Certified [SDVOSBs].[2] See VAAR § 819.7011(a). Accordingly, the solicitation included VAAR clause 852.219-73, which provides, in relevant part, that “[i]n order for a concern to submit an offer and be eligible for the award of an SDVOSB set-aside [ ], the concern must qualify as a small business concern under the size standard corresponding to the NAICS code assigned to the contract and be listed as an SDVOSB participant in the SBA certification database as set forth in 13 [C.F.R. §] 128.”[3] RFQ at 31. Further, the clause states that [b]y submitting an offer, the prospective contractor represents that it is an eligible and certified SDVOSB[.]” Id.

The solicitation also included FAR provision 52.212-3, Offeror Representations and Certifications--Commercial Products and Commercial Services. RFQ at 46-64. As relevant to this protest, this provision notes that by submitting a quotation in response to this RFQ:

The [vendor] has completed the annual representations and certifications electronically in SAM accessed through http://www.sam.gov. After reviewing SAM information, the [vendor] verifies by submission of this [quotation] that the representations and certifications currently posted electronically at FAR 52.212‑3, [ ] have been entered or updated in the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard(s) applicable to the NAICS code(s) referenced for this solicitation), at the time this [quotation] is submitted and are incorporated in this [quotation] by reference[.]

Id. 51. Finally, the solicitation identified the NAICS code for this requirement as 326199, “All Other Plastics Product Manufacturing,” with a corresponding size standard of 750 employees. Id. at 2; MOL at 2.

The protester submitted a timely quotation for $207,750 by the solicitation closing due date of April 28. MOL at 2; AR, Exh. 3, Fidelity Quotation at 2. On June 5, the agency awarded the contract to VA‑TRAK in the amount of $198,952. Contracting Officer’s Statement (COS) ¶¶ 3, 5‑6. On June 11, after learning of the agency’s award decision, the protester filed an agency-level protest arguing that VA-TRAK was ineligible to receive the award because VA-TRAK failed to specifically list NAICS code 326199 in its SAM profile. AR, Exh. 4, Agency Protest at 1-2. A month later, on July 11, the VA dismissed Fidelity’s agency-level protest on the basis that Fidelity’s protest allegation was effectively a challenge to VA-TRAK’s size status, which falls under the exclusive jurisdiction of the SBA. AR, Exh. 5, Agency Protest Dismissal at 1. As part of this dismissal, the VA informed Fidelity that it had forwarded its protest filing to the SBA. Id.

On July 16, the SBA dismissed Fidelity’s size protest. AR, Exh. 6, SBA Size Status Dismissal at 3. The SBA explained that it was dismissing Fidelity’s protest “for lack of specificity” because Fidelity did not allege that VA-TRAK “had more employees than is allowable under the applicable size standard” or “provide any information regarding VA‑TRAK’s number of employees.” Id.

On July 18, Fidelity filed this protest with our Office.

DISCUSSION

Fidelity argues that VA-TRAK was not eligible to receive the award because, at the time the firm submitted a quotation, its profile in the SAM database did not specifically identify NAICS code 326199. Protest at 1. In this regard, Fidelity does not argue that VA-TRAK is ineligible under the solicitation’s applicable size standard.[4] Rather, Fidelity contends that the agency’s award violated VAAR clause 852.219-73, and the terms of the solicitation, because VA-TRAK was required to identify NAICS code 326199 in its SAM profile prior to the time it submitted a quotation. Id.

By way of background, the SBA establishes small business size standards--expressed as either a maximum number of employees or annual receipts in millions of dollars--on an industry-by-industry basis. FAR 19.102(a)(1). The SBA identifies the size standards using NAICS codes. 13 C.F.R. § 121.201. The FAR provides that size standards are determined by classifying the product or service being acquired under the NAICS code that best describes it, identifying the size standard SBA established for that industry, and specifying the size standard in the solicitation so that vendors can appropriately represent themselves as large or small. FAR 19.102(b). As noted above, the solicitation here indicated that it was being issued under NAICS code 326199 with a size standard of 750 employees. RFQ at 2.

Turning to Fidelity’s allegation, the VA contends that neither the VAAR nor the solicitation condition award eligibility on whether a specific NAICS code is listed in a firm’s SAM profile at the time the firm submits a quotation or receives the award. MOL at 5. Instead, under the solicitation and the VAAR, the firm must be a certified SDVOSB in the SBA certification database and must affirmatively represent itself as a qualified small business concern based on the solicitation’s NAICS code size standard. Id. (citing VAAR clause 852.219-73(b), RFQ at 30-33). Accordingly, the agency states that prior to making the contract award, it determined that VA-TRAK was listed in the SBA certification database as a certified SDVOSB. COS ¶ 7; MOL at 5-6. The agency also determined that VA-TRAK had represented in the SAM database that it had fewer than 750 employees--thereby meeting the size standard corresponding to NAICS code 326199. COS ¶ 7; MOL at 5-6 (citing AR, Exh. 7, VA-TRAK SAM Profile at 6-8). As a result, the VA argues that its award complied with the terms of the VAAR and the solicitation. MOL at 5-6, 8.

We agree with the agency and see no basis to sustain Fidelity’s protest. Indeed, our Office has addressed a nearly identical question in two prior bid protests, S4, Inc., B‑299817, B‑299817.2, Aug. 23, 2007, 2007 CPD ¶ 164, and High Plains Computing, Inc. d/b/a HPC Solutions, B‑409736.2, Dec. 22, 2014, 2014 CPD ¶ 379.

In S4, Inc., the agency awarded a contract despite the awardee failing to include the NAICS code identified in the solicitation in its entries in the Online Representations and Certifications Application (ORCA) system.[5] S4, Inc., supra at 9‑10. In response to the assertion that the awardee’s failure to list the applicable NAICS code in its ORCA entries disqualified the firm from receiving the award, our Office determined that the agency properly awarded the contract because there was no apparent statutory or regulatory requirement for a firm to identify a specific NAICS code in its ORCA entries. Id. We further determined that the evaluation record showed that the contracting officer had a reasonable basis to conclude that the small business awardee was eligible for award under the solicitation’s size standard. Id. at 10-11.

Similarly, in HPC Solutions, a protester argued that the awardee was ineligible based on the awardee’s failure to list the applicable NAICS code in the firm’s SAM record. HPC Solutions, supra at 6-7. Citing our prior analysis in S4, Inc., our Office likewise determined that the protester failed to identify any statutory or regulatory requirement that a firm’s SAM record must include the same NAICS code identified in the solicitation. Id. at 7. We similarly concluded that the contracting officer had a reasonable basis to find that the firm was eligible for award. Id.

On this record, we reach the same conclusion. Like the protesters in S4, Inc. and HPC Solutions, Fidelity has not identified a statute, regulation, or solicitation provision that requires the agency to determine a firm’s eligibility by verifying that the solicitation’s NAICS code matches a NAICS code listed in the firm’s SAM profile.[6] Indeed, as noted above, the solicitation here announced that an eligible firm must “qualify as a small business concern under the size standard corresponding to the NAICS code assigned to the contract and be listed as an SDVOSB participant in the SBA certification database[.]” RFQ at 31. The record demonstrates that VA-TRAK complied with this requirement. In this regard, the agency confirmed that VA-TRAK was listed in the SBA certification database as a certified SDVOSB participant. COS ¶ 7; MOL at 5-6. In addition, the representations and certifications in VA‑TRAK’s SAM profile note that VA‑TRAK is a qualified SDVOSB contractor--certifying as small under NAICS standards as low as 150 employees, which is 600 employees fewer than the 750-employee size standard applicable to NAICS code 326199. See AR, Exh. 7, VA‑TRAK SAM Profile at 6-10. Accordingly, consistent with VAAR clause 852.219-73 and applicable VAAR requirements,[7] we conclude that the VA reasonably confirmed VA-TRAK’s eligibility and properly proceeded with the award.

Finally, in comments filed on August 26, the protester alleges, for the first time, that VA‑TRAK is ineligible because it cannot certify that its quotation complies with the requirements applicable to nonmanufacturers. Comments at 1-2. Specifically, Fidelity asserts that under the “nonmanufacturer rule,” a firm may only qualify as a small business concern to provide manufactured products, or supply items as a nonmanufacturer, if the firm “normally sells the type of item being supplied[.]” Comments at 3 (quoting 13 C.F.R. § 121.406(b)(1)(ii)). In this regard, Fidelity acknowledges that the “omission of NAICS 326199 from [VA-TRAK’s] SAM Profile at the time of offer and contract award may not, standing alone, constitute a basis for sustaining this protest.” Id. at 2. Rather, Fidelity contends that the “omission of NAICS 326199” is “probative of a deeper, disqualifying flaw: VA‑TRAK does not normally sell the type of item being supplied under this solicitation and therefore could not certify compliance as a nonmanufacturer under 13 C.F.R. § 121.406.” Comments at 2.

In support of this new allegation, Fidelity’s comments include exhibits referencing publicly available information about VA-TRAK’s business. See Comments at 1-4. For example, Fidelity attaches printouts from VA-TRAK’s SAM profile, as well as a “comprehensive listing of VA-TRAK, LLC [s]ales by NAICS downloaded from the Federal Procurement Data System on August 23,” noting that the list includes no sales under NAICS 326199. See Comments Exh. 4, Nonmanufacturer Certification Compliance at 1-3. In Fidelity’s view, VA-TRAK’s publicly available business record demonstrates that the firm is ineligible under the nonmanufacturer rule because VA‑TRAK does not normally sell the type of item being supplied by the solicitation. See Comments at 1-3.

We dismiss this allegation as untimely.

Our Bid Protest Regulations require that protests other than those challenging the terms of the solicitation be filed within 10 days of when a protester knew, or should have known, its basis for protest. See 4 C.F.R. § 21.2(a)(2). Moreover, our regulations do not contemplate the piecemeal presentation or development of protest issues through later submissions citing examples or providing alternate or more specific legal arguments missing from earlier general allegations of impropriety. See, e.g., Spatial Front, Inc., B-417985, B-417985.2, Dec. 18, 2019, 2020 CPD ¶ 8 at 11 n.13. In addition, protesters have an affirmative obligation to diligently pursue information that forms the basis for their protest and must do so in a reasonably expedient manner, considering the circumstances of the case. Colonial Fed. Healthcare, LLC, B-421977, B-421977.2, Nov. 14, 2023, 2023 CPD ¶ 257 at 4.

Here, we find that Fidelity failed to diligently pursue the information forming the basis of this protest ground and therefore filed the allegation in its comments, more than 10 days after it should have known the basis for the allegation. As noted above, Fidelity cites only publicly available information in support of its argument that VA-TRAK does not normally sell the type of item being acquired by this solicitation. See Comments, Exhs. 1-4. This information, however, was publicly accessible--and the protester knew, or should have known, such information shortly after becoming aware that VA-TRAK was selected as the awardee. Consequently, this allegation should have been asserted by Fidelity within 10 days of the date that Fidelity learned of the award to VA-TRAK. Because this new argument was raised more than 10 days after the protester knew or should have known the basis for the argument, it is now untimely and will not be considered.[8] 4 C.F.R. § 21.2(a)(2).

The protest is dismissed in part and denied in part.

Edda Emmanuelli Perez
General Counsel