Bode Cellmark Forensics, Inc. d/b/a Bode Technology

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: Bode Cellmark Forensics, Inc. d/b/a Bode Technology

File: B-423754; B-423754.2

Date: November 21, 2025

DIGEST

Protest challenging the issuance of a Small Business Innovation Research (SBIR) program phase III sole-source contract is denied where the record demonstrates that the agency is procuring work that derives from, extends, or completes efforts performed under prior SBIR contracts.

DECISION

Bode Cellmark Forensics, Inc., doing business as Bode Technology, a small business of Lorton, Virginia, protests the award of contract No. 70CMSD25D00000001 to SNA International, LLC, a small business of Alexandria, Virginia, by the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), to provide staff and resources to implement a rapid deoxyribonucleic acid (DNA) testing program for ICE enforcement and removal operations. The protester contends that the agency improperly awarded the indefinite-delivery, indefinite-quantity contract as a noncompetitive small business innovation research (SBIR) program phase III award.

We deny the protest.

BACKGROUND

This protest concerns ICE’s requirement for assistance implementing a rapid DNA testing program to identify fraudulent familial relationship claims made by individuals entering or attempting to enter the United States. Agency Report (AR), Tab 2, Statement of Work (SOW) at 1. The scope of work includes program management, use of DNA reach-back support services (RBSS) software, and the provision of a RBSS support center for rapid DNA end-user assistance. Id. at 2; Contracting Officer’s Statement (COS) at 1. The agency’s requirement also includes “all resources needed to implement a DNA testing program,” including training and supplies for processing and testing samples (e.g., processing instruments, test kits, swabs, and supply kits). SOW at 2; COS at 1. After reviewing its program needs and SNA’s prior SBIR efforts, ICE decided to meet the requirement by awarding an SBIR phase III contract to SNA. COS at 2; Memorandum of Law (MOL) at 2. The contract has a 2‑year ordering period, and the estimated value of the contract is $28,478,648. AR, Tab 7, Source Selection Decision (SSD) at 1.

The SBIR program is designed to increase the participation of small business concerns in federally funded research or research and development. See SBIR Program Act of 1982, 15 U.S.C. § 638 (the “SBIR statute”). The program has three phases. Under phase I, firms competitively apply for an award to test the scientific, technical, and commercial merit and feasibility of a concept. 15 U.S.C. § 638(e)(4)(A). If this is successful, a firm may be invited to apply for a phase II award to further develop the concept. Id. § 638(e)(4)(B). A phase III award is defined as work that “derives from, extends, or completes efforts made under prior funding agreements under the SBIR program.” Id. § 638(e)(4)(C). Under this phase, firms are expected to obtain funding from non-SBIR government sources or the private sector to develop the concept into a product for sale in private sector or military markets.

By way of background, in 2019, DHS awarded SNA an SBIR phase I contract to develop a DNA reach-back concept of operations for DHS components. AR, Tab 8, Award Memorandum at 1. The purpose of the contract was to analyze the feasibility of developing a reach-back capability to review results and support fielded rapid DNA systems using DNA store/match/share capability. Id. SNA’s proposed approach consisted of three major elements: DNA RBSS software (referred to as DNAConnect),[1] a DNA RBSS support center, and DNA RBSS accredited laboratory operations. Id.

In 2020, DHS awarded SNA an SBIR phase II contract to design and operationalize the DNA RBSS, including DNAConnect, the DNA RBSS support center, and the DNA RBSS accredited laboratory. Id.

On March 26, 2025, after identifying SNA’s prior SBIR efforts as relevant to the agency’s current requirement to implement a rapid DNA testing program for ICE enforcement and removal operations, ICE sent SNA a request for proposal. COS at 1‑2. After receiving and evaluating SNA’s proposal, the agency awarded the SBIR phase III contract to SNA on May 14. Id. at 2.

On May 23, Bode filed a protest with our Office, arguing that ICE improperly awarded the contract on a sole-source basis, contending, generally, that the DNA testing equipment and services being procured did not derive from, extend, or complete the efforts made by SNA under its prior SBIR efforts. COS at 2. We dismissed the protest as academic after the agency advised our Office of its intent to take corrective action by reviewing its requirements and acquisition documentation, changing its requirements as necessary, and making a new award determination. Bode Cellmark Forensics, Inc., B‑423560, June 11, 2025 (unpublished decision).

Subsequently, during the voluntary corrective action, ICE revised the SOW, requested a revised proposal from SNA, evaluated SNA’s revised proposal, and issued a new award memorandum. COS at 3. In reviewing SNA’s revised proposal, the agency found that the proposed rapid DNA solution derived from and extended the research, architecture, and technical design developed under SNA’s phase I and II contracts. AR, Tab 7, SSD at 2. The agency wrote that SNA’s prior SBIR efforts “envisioned a scientifically rigorous and operationally scalable framework to support Rapid DNA testing in the field through a centralized forensic reach-back model,” and those efforts provided the “foundation for what is now a fully operational software solution.” Id.

On July 14, ICE confirmed its previous award determination and Bode filed this protest on July 23. COS at 3.

DISCUSSION

Bode raises various arguments challenging the propriety of the SBIR phase III award.[2] While our decision here does not specifically discuss each and every argument, or permutation of the arguments raised by Bode in its submissions to our Office, we have considered all of the protester’s assertions and find none furnishes a basis for sustaining the protest.[3]

At the outset, we note that contracting agencies have broad discretion to determine their needs and the best way to meet them. Crewzers Fire Crew Transport, Inc., B-402530, B-402530.2, May 17, 2010, 2010 CPD ¶ 117 at 3. We have recognized this discretion with respect to the SBIR program, and in reviewing the propriety of a phase I or II SBIR award, we have found that our review is limited to determining whether the agency violated any applicable regulations or solicitation provisions or acted in bad faith. Wang Electro-Opto Corp., B-418523, June 4, 2020, 2020 CPD ¶ 187 at 5; U S Positioning Grp., LLC, B‑294027, June 21, 2004, 2004 CPD ¶ 133 at 3.

With respect to SBIR phase III, the SBIR statute and policy guidance provide relatively limited requirements to justify an award. The relevant portion of the statute states that the SBIR program will include,

where appropriate, a third phase for work that derives from, extends, or completes efforts made under prior funding agreements under the SBIR program in which commercial applications of SBIR‑funded research or research and development are funded by non‑Federal sources of capital or, for products or services intended for use by the Federal Government, by follow‑on non‑SBIR Federal funding awards[.]

15 U.S.C. § 638(e)(4)(C)(i). The statute further states that “[t]o the greatest extent practicable, Federal agencies . . . shall . . . issue, without further justification, Phase III awards relating to technology, including sole source awards, to the SBIR . . . award recipients that developed the technology.” Id. § (r)(4)(B).

The policy directive defines SBIR phase III work in a similar manner. SBIR/Small Business Technology Transfer (STTR) Policy Directive (May 2023) § 4(c) (“Phase III refers to work that derives from, extends, or completes an effort made under prior SBIR/STTR Funding Agreements”). The policy directive clarifies that a federal agency may enter an SBIR phase III agreement at any time with an SBIR phase II awardee. Id.

Given these limited requirements and the significant discretion afforded to agencies in this area, the core issue we must resolve regarding Bode’s protest of the phase III award is whether ICE reasonably concluded that SNA’s proposed solution derives from, extends, or completes efforts made under prior SBIR awards.

ICE’s “Actual Requirement” and SNA’s Prior SBIR Efforts

The protester contends that the phase III award does not derive from, extend, or complete SNA’s prior SBIR efforts because ICE’s “actual requirement” is for rapid DNA testing services--and not RBSS software and a DNA RBSS support center. Comments & Supp. Protest at 12-13. In making this argument, Bode focuses on the agency’s actions prior to taking corrective action in response to Bode’s first protest. Namely, the protester points to a prior version of the SOW, which did not reference DNAConnect, and a March 2025 email in which the contracting officer stated the agency needed to “procur[e] DNA machines and test kits . . . that can be used for rapid DNA testing.” Id. at 12 (quoting AR, Tab 21, Agency Due Diligence Emails at 4). Bode asserts that this information demonstrates that ICE’s objective was to acquire DNA machines and test kits, and although the revised SOW references DNAConnect, this “tenuous connection to SBIR-developed work” cannot be used to support a phase III award. Id. at 13. ICE responds that the phase III contract “plainly derives from SNA’s prior SBIR efforts.” MOL at 9. The agency notes that the SOW requires SNA to use DNAConnect and the DNA RBSS support center developed under its prior SBIR efforts. Id.

We are not persuaded by the protester’s arguments. The agency’s actions prior to the voluntary corrective action and the scope of work described in a prior version of the SOW are not relevant to the propriety of the protested award. This protest pertains to the July 14 award to SNA, and this award decision was premised on the revised version of the SOW, which expressly references the technologies developed under SNA’s prior SBIR efforts. See AR, Tab 7, SSD; AR, Tab 8, Award Memorandum. This version of the SOW requires “use of the DNA RBSS Software (DNAConnect) for reach-back support services,” and it requires the contractor to “provide an RBSS Support Center for Rapid DNA end-user assistance.” SOW at 2. With respect to the RBSS support center, the SOW provides: “CONTRACTOR shall modify the DNA RBSS End-user Support Center Operations Manual, which derived from, and extends its previous SBIR efforts, as necessary to complete the requirements of this contract.” Id. at 3. Additionally, the SOW states: “CONTRACTOR shall use the DNA RBSS software, also known as[] DNAConnect, which derives from and extends the CONTRACTOR’s previous SBIR efforts contract effort as part of performing the requirements[.]” Id. at 4.

In other words, at a minimum, the SOW for the instant award extends SNA’s prior SBIR efforts because it requires the use of elements developed during SNA’s prior SBIR efforts. SOW at 2-4. The protester asks us to focus on ICE actions taken prior to the first award and an obsolete version of the SOW and find the agency’s “actual requirements” are machines and test kits. The agency’s “actual requirements,” however, are set forth in the SOW for the award, and that SOW establishes that the phase III award derives from, extends, or completes efforts from SNA’s prior SBIR effort. In sum, the protester’s arguments are not supported by the record, and this protest allegation is denied.[4]

Authority Under the SBIR Statute

In a similar vein, the protester alleges that ICE exceeded its authority under the SBIR statute in awarding the phase III contract to SNA because the majority of the contract price will be used to purchase commercially available machines, test kits, and consumable items from a third party--as opposed to the DNA RBSS software and RBSS support center developed under SNA’s prior SBIR contracts. Protest at 18-20; see also Comments & Supp. Protest at 13-14.

Our Office considered and rejected a similar argument in Digital Force Technologies, Inc., B-423319, May 19, 2025, 2025 CPD ¶ 115. In Digital Force, the protester argued that the agency improperly used SBIR phase III authority to award a contract because only a single component of the system to be acquired derived from, extended, or completed the relevant prior SBIR efforts, and many of the other components were commercially available items. We rejected the protester’s arguments, noting the protester did not point to any statute, regulation, or other legal authority stating that an agency may not use SBIR phase III authority to procure a system where only a component of the overall system derives from, extends, or completes a prior SBIR effort. Id. at 13-14. We analyzed the relevant legal authorities and found there is no requirement in the SBIR statute or the policy directive that the entirety of a phase III solution must be derived from prior SBIR efforts. Id. at 14-15.

Here, ICE sought a contractor to assist with the implementation of a rapid DNA testing program. SOW at 1. The testing program requires both SNA’s SBIR-derived technology and commercially available items. Specifically, as discussed above, the SOW requires the use of the SNA’s DNAConnect software and a RBSS support center, which SNA has developed under its prior SBIR efforts. Id. at 2. Additionally, as the protester claims, the DNA testing program requirement also requires the use of commercially available supply items such as processing instruments, test kits, swabs, and supply kits. While the agency’s requirement may include these additional commercial supply items, it does not negate the fact that central elements of the agency’s DNA testing program requirement also includes technology derived from SNA’s prior SBIR efforts.

Bode has not identified any language in any applicable statute, regulation, or other legal authority that prohibits an agency from using a phase III award to acquire SBIR-developed components with commercially available items where the SBIR-derived components utilize commercially available items.[5] Nor has the protester identified any authority that limits portions of the contract price that may be used to procure commercially available items needed for performance. To the extent the protester asks our Office to find that an agency exceeds its authority under the SBIR statute if the commercial items account for a majority of the contract price, the statute does not establish the type of price test advanced by the protester. Accordingly, we deny Bode’s argument that the phase III award was improper because the award includes commercially available items.[6]

In sum, we have considered the protester’s various challenges to the propriety of the SBIR phase III award, and we find none of the allegations provides a basis to sustain the protest. Bode has not provided any reason to question the reasonableness of ICE’s conclusion that SNA’s proposed solution derives from, extends, or completes efforts made under prior SBIR awards.

The protest is denied.

Edda Emmanuelli Perez
General Counsel