B-299821.3, Eagle Home Medical Corporation--Costs, February 4, 2008

B-299821.3 Feb 04, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Eagle Home Medical Corporation requests that we recommend that the firm be reimbursed the costs of filing and pursuing its protest challenging the terms of request for proposals (RFP) No. VA-247-RP-0037, issued by the Department of Veterans Affairs (VA) for supplies and services supporting the provision of oxygen to veterans being served by the VA Medical Center, Atlanta, Georgia. Eagle contended that the RFP should have been set aside exclusively for small business concerns. We grant the request and recommend that the protester be reimbursed the reasonable costs of filing and pursuing its protest. View Decision B-299821.3, Eagle Home Medical Corporation--Costs, February 4, 2008 Decision Matter of: Eagle Home Medical Corporation--Costs File: B-299821.3 Date: February 4, 2008 Gerald H. Werfel, Esq., Pompan, Murray & Werfel, for the protester. Merilee D. Rosenberg, Esq., Department of Veterans Affairs, for the agency. Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Government Accountability Office recommends that the protester be reimbursed for the costs of filing and pursuing its protest, where the agency unduly delayed taking corrective action until after the submission of the agency report and the protester's comments, and the protest was clearly meritorious. DECISION Eagle Home Medical Corporation requests that we recommend that the firm be reimbursed the costs of filing and pursuing its protest challenging the terms of request for proposals (RFP) No. VA-247-RP-0037, issued by the Department of Veterans Affairs (VA) for supplies and services supporting the provision of oxygen to veterans being served by the VA Medical Center, Atlanta, Georgia. Eagle contended that the RFP should have been set aside exclusively for small business concerns. We grant the request and recommend that the protester be reimbursed the reasonable costs of filing and pursuing its protest. The RFP, issued on an unrestricted basis, provided for the award of a requirements contract to provide oxygen and rental oxygen equipment for a base year with 4 option years. In addition to the supply of oxygen and rental equipment, the contractor would provide a variety of services, including equipment delivery and set'up, patient education, re-supply, emergency services (for delivery of oxygen), and reporting. RFP, Statement of Work, at 11-24. Eagle, a small business concern, protested that the RFP should have been set aside exclusively for small business concerns. Specifically, the protester argued that there were more than 40 responsible small business firms in Georgia capable of satisfying the RFP requirements. In this regard, Eagle complained that the agency failed to perform any market research to establish whether or not there were two or more responsible small business concerns capable of performing these requirements. Under Federal Acquisition Regulation (FAR) sect. 19.502-2(b), a procurement with an anticipated dollar value of more than $100,000, such as this one, must be set aside for exclusive small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns and that award will be made at a fair market price. Generally, a procurement set-aside determination in this context is a matter of business judgment within the contracting officer's discretion, which our Office will not disturb absent a showing that it was unreasonable. Neal R. Gross & Co., Inc., B'240924.2, Jan. 17, 1991, 91-1 CPD para. 53 at 2. However, an agency must undertake reasonable efforts to ascertain whether it is likely that it will receive offers from at least two small businesses capable of performing the contract work. FAR sect. 19.202-2(a); Information Ventures, Inc., B'294267, Oct. 8, 2004, 2004 CPD para. 205 at 3. According to the VA, the RFP here was based upon the agency's –national template— for acquiring these services and supplies. While the VA previously set aside the services described in this template for exclusive small business participation, the United States Court of Federal Claims, in reviewing two other solicitations based upon the same template had found that the Small Business Act's –non-manufacturer rule— applied to those procurements and that the set-aside decisions of these solicitations based upon the belief that this rule did not apply were improper.[1] See Rotech Healthcare, Inc. v. United States, 71 Fed. Cl. 393, 424 (2006), appeal dismissed, No. 2006-5121 (Fed. Cir. 2006).