Title and Citation: US GAO Decision Matter of: Information Ventures, Inc. (FSI)
Facts of the Case:
Information Ventures, Inc. protested the decision of the Department of the Interior, Minerals Management Service (MMS), to issue request for proposals (RFP) for assessing health education methods, on an unrestricted basis. Information Ventures, a small business, contended that the requirement should be set aside for a small business. MMS published a presolicitation notice in May 2004 on the Federal Business Opportunities website on behalf of the Department of Health and Human Services, Office of Disease Prevention and Health Promotion (ODPHP). MMS stated that the intent would be on an unrestricted basis pursuant to the Federal Acquisition Regulation (FAR) subpart 13.5, Test Program for Certain Commercial Items, a report that “draws[s] national attention to innovative health education methods and the commonalities of successful programs; and to provide a resource for those who are developing health education materials for youth ages 9-13.” The presolicitation notice prescribed a two-step process where interested offerors must demonstrate their ability to perform the work required in a capabilities statement. The capabilities statement would be reviewed by the agency and used to determine whether offerors were qualified and capable to execute the work. Then the agency sent requests for proposals to the offerors they qualified. Twenty offerors, including six small businesses, requested a copy of the solicitation by June 4. The RFP was issued on an unrestricted basis on June 18, yet the “Solicitation Issued Date” was June 21. The submission deadline for the capabilities statement was July 7. On June 30, Information Ventures filed a protest to the GAO.
Issues:
Information Ventures is challenging the decision not to have a small business set aside for the procurement. The contracting officer failed to conduct adequate market research before determining not to set aside the procurement. The contracting officer did not take into account known information that indicated the interest of capable small business concerns for this procurement. The SBA noted that the contracting officer failed to look into other recommended, readily available sources of information concerning the availability of responsible small business concerns.
Decisions (Holdings): The protest was sustained.
Reasoning (Rationale):
FAR § 19.202-2 requires contracting officers to make “every reasonable effort to find additional small business concerns,” before issuing solicitations. This should also include contacting the agency SBA procurement center representative or the SBA. FAR § 19.202 requires contracting officers to consider recommendations of the agency’s Director of Small and Disadvantaged Business Utilization to determine whether an acquisition should be set aside for small businesses. Also FAR § 19.501(e) states that the contracting officer must review acquisitions to determine if they can be set aside for small business, “giving consideration to the recommendations of agency personnel having cognizance of the agency’s small business programs.” Overall, the contracting officer failed to utilize these available sources of information concerning potential small business participation. Separate Opinions: None
Analysis:
The contracting officer did not assess the capability of the small business concerns that had responded to the presolicitation notice, and did not make a sufficient effort to survey the market. If they had done so, the agency would been able to determine whether there was a reasonable expectation that two or more responsible small business concerns would submit bids at fair market prices. Before issuing the solicitation on an unrestricted basis, the determination that there was no reasonable expectation of receiving offers from at least two capable and qualified small business concerns was not based on sufficient facts to establish its reasonableness.