Herman Construction Group, Inc.

B-415394 Jan 04, 2018 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Herman Construction Group, Inc., of Escondido, California, protests the award of a contract to Eklutna Construction & Maintenance, LLC, of Eagle River, Alaska, under invitation for bids (IFB) No. W911SA-17-B-2008, issued by the Department of the Army, as a competitive Small Business Administration (SBA) 8(a) set-aside, for facilities repairs at Fort Hunter Liggett, California. The protester asserts that the awardee is ineligible because it does not have a bona fide place of business within the geographic area serviced by the SBA district office that accepted the requirement into the 8(a) program and that the IFB failed to include a required geographic area restriction. We dismiss the protest. We dismiss the protest. View Decision 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:  Herman Construction Group, Inc. File:  B-415394 Date:  January 4, 2018 William L. Bruckner, Esq., and Jessica L. Mulvaney, Esq., Bruckner Law Firm, APC, for the protester. Carissa Siebeneck Anderson, Esq., Jon M. DeVore, Esq., and Melinda L. Meade Meyers, Esq., Birch, Horton, Bittner & Cherot, for Eklutna Construction & Maintenance, LLC, the intervenor. Scott N. Flesch, Esq., and Captain William T. Wicks, Department of the Army, for the agency. John W. Klein, Esq., and Laura M. Foster, Esq., Small Business Administration. Kenneth Kilgour, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, articipated in the preparation of the decision. DIGEST Protest that solicitation failed to include a geographic area restriction is dismissed as untimely when filed after the time set for bid opening. DECISION Herman Construction Group, Inc., of Escondido, California, protests the award of a contract to Eklutna Construction & Maintenance, LLC, of Eagle River, Alaska, under invitation for bids (IFB) No. W911SA-17-B-2008, issued by the Department of the Army, as a competitive Small Business Administration (SBA) 8(a) set-aside, for facilities repairs at Fort Hunter Liggett, California.  The protester asserts that the awardee is ineligible because it does not have a bona fide place of business within the geographic area serviced by the SBA district office that accepted the requirement into the 8(a) program and that the IFB failed to include a required geographic area restriction.  We dismiss the protest. BACKGROUND On August 9, 2017, the Army submitted a letter to the SBA’s district office in Fresno, California, offering the requirement for facilities repairs for competition under the SBA’s 8(a) program.  See Agency Report (AR), Tab 5, SBA Acceptance Letter, at 1.  On that same day, the SBA accepted the requirement and stated that the solicitation must limit competition to 8(a) firms located in the geographic area serviced by the Fresno, Sacramento, and San Francisco district offices, and other 8(a) firms with a bona fide place of business within that geographic area.  Id. On August 10, the agency issued the IFB as an 8(a) set-aside and assigned North American Industry Classification System (NAICS) code 236220, Commercial and Institutional Building Construction.  AR, Tab 6, IFB, at 1.  The IFB failed to include the geographic restriction.  See id.  The agency issued several amendments to the solicitation, which included contractor questions and answers.  Id., Tabs 7-9, Amend. 1‑3.  The agency did not receive any questions as to whether a geographic restriction applied.  The contracting officer opened the sealed bids on September 14 and determined that Eklutna had submitted the apparent low bid.  AR, Tab 5, Abstract of Offers, at 1.  Herman submitted the next lowest bid.  Id.  On September 15, Herman filed an agency-level protest alleging that Eklutna was not eligible for award of the 8(a) contract because it did not have a bona fide place of business in the geographic area where the work is to be performed.  AR, Tab 11, Agency-Level Protest, at 3.  On September 21, in response to the protester’s agency-level protest, the Army notified the SBA that Eklutna was the apparent low bidder and asked the Alaska District Office of the SBA to provide an eligibility determination.  See AR, Tab 12, Letter from Contracting Officer (CO) to SBA, Sept. 21, 2017.  That same day, the Alaska District Office responded that, in the SBA’s view, “[i]n accordance with the clauses and provisions included in the subject solicitation” Eklutna “met the eligibility and size criteria for award of the contract.”  AR, Tab 13, Letter from SBA to CO, Sept.