SAK Management Consulting ()

B-418516 Mar 18, 2020 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights SAK Management Consulting, LLC, a small disadvantaged business of Fredericksburg, Virginia, protests the award of a contract on a sole-source basis to Empirical Concepts, Inc., by the Department of Health and Human Services (HHS) for audit support work. The protester argues that the agency lacked an adequate justification for making award on a sole-source basis, and that the agency removed the requirement from the 8(a) program in violation of applicable Small Business Administration (SBA) regulations. We dismiss the protest as untimely. View Decision Decision Matter of:  SAK Management Consulting File:  B-418516 Date:  March 18, 2020 Semy Kakoma, SAK Management Consulting, for the protester. Tami S. Hagberg, Esq., Nana Yaa Agyemang, Esq., Giovanna Jean-Baptiste, Esq., Department of Health and Human Services, for the agency. Heather Self, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is dismissed as untimely because the protester did not submit a readable protest file in GAO’s Electronic Protest Docketing System until more than 10 days after it knew the basis of its protest, notwithstanding protester’s submission of an un-openable file prior to close of business on the tenth day. DECISION SAK Management Consulting, LLC, a small disadvantaged business of Fredericksburg, Virginia, protests the award of a contract on a sole-source basis to Empirical Concepts, Inc.,[1] by the Department of Health and Human Services (HHS) for audit support work.  The protester argues that the agency lacked an adequate justification for making award on a sole-source basis, and that the agency removed the requirement from the 8(a) program in violation of applicable Small Business Administration (SBA) regulations.[2] We dismiss the protest as untimely. Through the SBA’s 8(a) program, the agency awarded a contract for audit support work to SAK-GMG Joint Venture, LLC on January 1, 2019, for a 1-year base period and four 1-year option periods.  COS at 1.  The record reflects that on September 24, 2019, the SBA informed the agency that the joint venture had been disapproved.  Id.; COS, attach. 1, Letter from SBA to HHS, at 1.  In light of the disapproval, the agency decided to reprocure the requirement, rather than exercise the first option year on SAK-GMG’s contract.  COS at 1.  The agency represents that the requirement has been in the 8(a) program for approximately ten years, and that there was “no known rationale to remove it from the program.”  COS at 1.  Accordingly, on December 4, 2019, the agency submitted an offer letter to SBA indicating the agency’s intent to negotiate on a sole-source basis with Empirical Concepts, Inc., a contractor in the 8(a) program.  Id.; COS, attach. 2, Agency Offering Letter.  The agency provides that the total estimated value for the requirement is $3,227,223.  COS at 2; COS, attach. 2, Agency Offering Letter, at 1.  The SBA regulations governing the 8(a) program and applicable sections of the FAR permit agencies to negotiate sole-source 8(a) awards when the anticipated total value of the contract, including options, will not exceed $4,000,000.  13 C.F.R. § 124.506(a)(2)(ii); FAR § 19.805-1(a)(2).  On December 9, 2019, the SBA accepted the agency’s offer letter to negotiate with Empirical on a sole-source basis.  COS at 1; COS, attach. 3, SBA Acceptance Letter.  On February 12, 2020, the agency notified SAK that an award had been made for the audit support work.  Request for Dismissal at 1; Protest, exh. B, Email from HHS to Protester.  At 9:19 p.m.[3] on February 20, SAK attempted to file its protest with our Office challenging the sole-source award.  See Electronic Protest Docketing System (Dkt.) No. 1.  Our Bid Protest Regulations provide that a submission that is received after 5:30 p.m. is considered to be filed on the following business day.  4 C.F.R. § 21.0(g); AeroSage, LLC--Costs, B-417289.8, Aug. 2, 2019, 2019 CPD ¶ 271 at 3 n.5. Accordingly, SAK’s February 20 filing is considered to have been filed on February 21.  The attempted February 21 protest filing consisted of three documents--a protest letter and two exhibits.  Dkt. No. 1.  Our Office was able to open both of the exhibit documents, but we could not open the protest letter.[4]  Request for Dismissal, exh. 3, Email from GAO to Protester.  At 6:57 a.m. on February 21, our Office contacted SAK regarding the problem with its filing, and asked it to resubmit its protest “as soon as possible.”  Id.  Our Office advised SAK that in order for its corrected filing to be considered filed on February 21--the same day as its original filing attempt--our Office “must receive the corrected filing before 5:30 p.m.”  Id.  Three days later, at 12:27 p.m.