B-299054, Continental Staffing, Inc., January 29, 2007

B-299054 Jan 29, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Continental Staffing, Inc. protests the award of a contract to TriStar Imaging, LLC by the Department of Veterans Affairs (VA) pursuant to solicitation for offers (SFO) No. 693-06-0014, issued to procure off-site radiology readings, to include film and CAT scans, during weekday hours for the VA Medical Center in Wilkes Barre, Pennsylvania. The SFO here used what the VA terms a "cascade set-aside procedure." SFO at 13. Continental argues that the cascade clause here conflicts with the requirements of the Federal Acquisition Regulation (FAR), and that the agency did not obtain permission to deviate from the FAR's requirements. Alternatively, Continental contends that, even under the terms of the challenged clause, it should have received award, rather than TriStar. We deny the protest. View Decision B-299054, Continental Staffing, Inc., January 29, 2007 Decision Matter of: Continental Staffing, Inc. File: B-299054 Date: January 29, 2007 Gilbert J. Ginsburg, Esq., for the protester. James H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc Kelly, for TriStar Imaging, LLC, an intervenor. Phillipa L. Anderson, Esq., and Dennis Foley, Esq., Department of Veterans Affairs, for the agency. John W. Klein, Esq., and Kenneth W. Dodds, Esq., for the Small Business Administration. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protester's contention that solicitation's cascading set-aside clause violates certain set-aside provisions in the Federal Acquisition Regulation is untimely when first raised after award; the alleged solicitation impropriety was clear from the face of the solicitation, and the protester was required, under our Bid Protest Regulations, to raise this issue prior to the time set for the submission of offers. 2. Contention by protester, a service-disabled veteran-owned small business (SDVOSB), that, under terms of the solicitation's cascading set-aside clause, agency should have made award in the SDVOSB tier is denied where agency reasonably decided that the condition for making award at that tier--receipt of adequate competition among SDVOSB firms--had not been met given that four of the five proposals submitted by SDVOSBs were found unacceptable for taking exception to the solicitation's limitations on subcontracting clause. DECISION Continental Staffing, Inc. protests the award of a contract to TriStar Imaging, LLC by the Department of Veterans Affairs (VA) pursuant to solicitation for offers (SFO) No. 693-06-0014, issued to procure off-site radiology readings, to include film and CAT scans, during weekday hours for the VA Medical Center in Wilkes Barre, Pennsylvania. The SFO here used what the VA terms a –cascade set-aside procedure.— SFO at 13. Continental argues that the cascade clause here conflicts with the requirements of the Federal Acquisition Regulation (FAR), and that the agency did not obtain permission to deviate from the FAR's requirements. Alternatively, Continental contends that, even under the terms of the challenged clause, it should have received award, rather than TriStar. We deny the protest. BACKGROUND On August 4, 2006, the VA Medical Center in Wilkes Barre, Pennsylvania issued this SFO to supplement its in-house radiology capability with daytime off-site radiology interpretation services, to be performed by licensed radiologists. The SFO estimated a need for approximately 70 film readings, and 10 CAT scan studies, per day, and sought unit prices for readings and studies. SFO at 1. The solicitation anticipated award of a fixed-price contract to the –responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered.— Id. at 13. Two clauses incorporated into this SFO are relevant to the dispute here. First, the SFO incorporated the Limitations on Subcontracting Clause at FAR sect. 52.219-14. This clause requires that for services, other than construction, the offeror agree that –at least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.— FAR sect. 52.219-14(b)(1). Second, the SFO contained a clause entitled, –Method of Award -- Cascade Set-Aside Procedure.— SFO at 13. The relevant portions of this clause advised: 1. Any award(s) resulting from this solicitation will be made using the following the [sic] cascade set-aside order of precedence: 1.1 In accordance with FAR Subpart 19.1405, any award under this solicitation will be made on a competitive basis first to an eligible Service Disabled Veteran Owned small business [SDVOSB] concern . . .