B-310552, Singleton Enterprises-GMT Mechanical, A Joint Venture, January 10, 2008

B-310552 Jan 10, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Singleton Enterprises-GMT Mechanical, A Joint Venture (JV), protests the rejection of its bid as nonresponsive by the Department of Veterans Affairs (VA) under invitation for bids (IFB) No. VA-249-07-IB-0058, for the replacement of the main transformers at the VA Medical Center in Lexington, Kentucky. We sustain the protest. View Decision B-310552, Singleton Enterprises-GMT Mechanical, A Joint Venture, January 10, 2008 Decision Matter of: Singleton Enterprises-GMT Mechanical, A Joint Venture File: B-310552 Date: January 10, 2008 Arthur Wayne Singleton and Gary Michael Thompson for the protester. Tracy Downing, Esq., and Charlma Quarles, Esq., Department of Veterans Affairs; John W. Klein, Esq., and Kenneth W. Dodds, Esq., Small Business Administration, for the agencies. Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest of agency's rejection of firm's bid as nonresponsive under a solicitation set aside for service-disabled veteran-owned small business concerns (SDVOSBC) is sustained because the matter does not involve the responsiveness of the bid; rather, the protest involves the question of the status of the bidder as an eligible SDVOSBC, a matter within the exclusive authority of the Small Business Administration, not the procuring agency. DECISION Singleton Enterprises-GMT Mechanical, A Joint Venture (JV), protests the rejection of its bid as nonresponsive by the Department of Veterans Affairs (VA) under invitation for bids (IFB) No. VA-249-07-IB-0058, for the replacement of the main transformers at the VA Medical Center in Lexington, Kentucky. We sustain the protest. The agency issued the IFB on the Federal Business Opportunities website on August 21, 2007, as a total set-aside for service-disabled veteran-owned small business concerns (SDVOSBC). In this regard, the IFB included the clause at Federal Acquisition Regulation (FAR) sect. 52.219-27, entitled, –Notice of Total Service'Disabled Veteran-Owned Small Business Set-Aside,— under which a firm must represent at the time it submits its bid that it is an eligible SDVOSBC. Five firms submitted bids in response to the IFB by the September 25 bid opening date. The contracting officer determined that the two lowest bids were both nonresponsive for reasons not germane to the protest. Singleton-GMT JV's bid was third low. The VA rejected this bid as nonresponsive based on its review of a copy of a Singleton-GMT JV agreement, dated August 13, which was not included in the firm's bid, but was on file with the agency.[1] Agency Report (AR), Tab 4, Singleton-GMT JV Agreement (Aug. 13, 2007). The VA claimed that the Singleton-GMT JV agreement did not comply with the Small Business Administration's (SBA) SDVOSBC regulatory requirement incorporated into this IFB that every JV agreement to perform a contract set aside for SDVOSBCs must contain a provision –[d]esignating an SDVOSBC as the managing venturer of the joint venture, and an employee of the managing venturer as the project manager responsible for performance of the SDVO contract.—[2] 13 C.F.R. sect. 125.15(b)(2)(ii) (2007); FAR sect. 52.219-27(d). The VA, therefore, rejected Singleton-GMT JV's bid as nonresponsive, and made award to the fourth low bidder, Affiliated Western, Inc. This protest followed.[3] At the outset, the agency's determination that the bid of Singleton-GMT JV was nonresponsive was clearly in error. Responsiveness involves whether a bid as submitted represents an offer to perform, without exception, the exact thing called for in the solicitation so that, upon acceptance, the contractor will be bound to perform in accordance with the IFB's material terms and conditions. B-G Mech. Serv., Inc., B-265782, Dec. 27, 1995, 96-1 CPD para. 6 at 2. Responsiveness, thus, is determined at the time of bid opening from the face of the bid documents. Id.For such purpose, bid documents include information submitted with a bid or incorporated into the bid by reference. Hewlett-Packard Co., B-184515, Jan. 12, 1976, 76-1 CPD para. 18 at 5-6. Here, Singleton-GMT JV's bid took no exception to the IFB requirements, and the August 13 agreement the agency relied on was neither included, nor incorporated by reference, in the bid. Moreover, we view the issue of Singleton-GMT JV's eligibility as an SDVOSBC to be a matter of status and, where an agency has a question regarding a bidder's status as an SDVOSBC, the SBA, not the procuring agency, is responsible for determining whether a firm is an eligible SDVOSBC. In 2003, Congress created, by amending the Small Business Act, a procurement program for small business concerns owned and controlled by service-disabled veterans, that is, SDVOSBCs. Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651, 2662 (2003), 15 U.S.C. sect.