Tom & Jerry, Inc.

B-417474.2 Published: Nov 20, 2019. Publicly Released: Dec 09, 2019. Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Tom & Jerry, Inc., an 8(a) small business of Kansas City, Kansas requests that our Office recommend it be reimbursed the reasonable costs of filing and pursuing its protest challenging the terms of request for quotations (RFQ) No. W9124719Q1888, issued by the Department of the Army, Mission and Installation Contracting Command Center-Ft. Bragg for non-personal services in support of a Yellow Ribbon Reintegration Program (Yellow Ribbon) event. The request for costs is denied. 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:  Tom & Jerry, Inc.--Costs File:  B-417474.2 Date:  November 20, 2019 Matthew P. Moriarty, Esq., Shane J. McCall, Esq., Nicole D. Pottroff, Esq., and Robert D. Kampen, Esq., Koprince Law, LLC, for the protester. Major Mark T. Robinson, Captain Richard W. Hagner, and Scott N. Flesch, Esq., Department of the Army, and Sam Le, Esq., Small Business Administration, for the agencies. Lois Hanshaw, Esq., and Amy B. Pereira, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Reimbursement of protest costs following an agency’s corrective action is unwarranted, where the protest was not clearly meritorious. DECISION Tom & Jerry, Inc., an 8(a) small business of Kansas City, Kansas requests that our Office recommend it be reimbursed the reasonable costs of filing and pursuing its protest challenging the terms of request for quotations (RFQ) No. W9124719Q1888, issued by the Department of the Army, Mission and Installation Contracting Command Center-Ft. Bragg for non-personal services in support of a Yellow Ribbon Reintegration Program (Yellow Ribbon) event.  BACKGROUND On April 5, 2019, the agency issued the RFQ as a set-aside for economically disadvantaged women-owned small businesses.  Agency Report (AR), Tab 3, RFQ at 1.[1]  The solicitation contemplated the award of a fixed-price contract for non-personal services in support of a Yellow Ribbon event to be performed from May 1 to May 6, in Denver, Colorado.  Id at 1, 16.  The Yellow Ribbon program is designed to prepare and sustain soldiers in the Army Reserve and their families during all phases of a soldier’s deployment.  RFQ at 16.  Prior to the time set for receipt of quotations, Tom & Jerry filed a protest with our Office arguing that the agency’s failure to set aside the solicitation for 8(a) small businesses violated 13 C.F.R. § 124.504(d)--known as the “once 8(a), always 8(a)” rule--which states that where a procurement is awarded as an 8(a) contract, its follow-on or renewable acquisition must remain in the 8(a) program unless the Small Business Administration (SBA) agrees to release it from the 8(a) program for non-8(a) competition.[2]  Protest at 6 citing 13 C.F.R. § 124.504(d).  Tom & Jerry explained that the SBA Kansas City, Kansas District Office informed the Army, prior to the issuance of the solicitation, that it understood that Yellow Ribbon work had been accepted into the 8(a) program.  Id. at 7.  The record showed that “SBA’s position” regarding Yellow Ribbon work was that all Yellow Ribbon work had been accepted into the 8(a) program in 2015 and awarded to Tom and Jerry.[3]  AR, Tab 46, Email from SBA to Agency, Nov. 5, 2018 (9:15 A.M.).  In this regard, the District Office informed the Army that Yellow Ribbon work must be awarded to only 8(a) firms or released for non-8(a) procurement pursuant to Federal Acquisition Regulation § 19.815.  Id.  Thus, Tom & Jerry argued that there was “no doubt” that Yellow Ribbon events issued after October 2015 had been accepted into the 8(a) program and could not be removed from the 8(a) program without SBA’s approval.  Protest at 7.  In its agency report, the Army asserted it was not required to set aside the procurement for 8(a) small businesses and did not need SBA’s permission to issue the solicitation outside of the 8(a) program.  Memorandum of Law (MOL) at 7.  In this regard, the agency explained that the Yellow Ribbon work had been neither awarded exclusively to Tom and Jerry, nor awarded solely under the 8(a) program.  Id.