M R Pittman Group, LLC (W912P820B0063)

B-419569 May 05, 2021 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights M.R. Pittman Group, LLC, of New Orleans, Louisiana, protests the award of a contract to J. Star Enterprise, Inc., a small business of New Orleans, Louisiana, under Invitation for Sealed Bids (IFB) No. W912P8-20-B-0063, issued by the Department of the Army, Army Corps of Engineers, New Orleans District, for the inspection, removal, and repair of the pump units for Wilkinson Canal Pump Station in Plaquemines Parish, Louisiana. Pittman, which submitted the lowest-priced bid but did not receive the contract because it is other than small, challenges its non-selection for award on the basis that the IFB was not in fact a set-aside for small business concerns. We dismiss the protest. View Decision Decision Matter of:  M R Pittman Group, LLC File:  B-419569 Date:  May 5, 2021 Jonathan S. Forester, Esq., Riess LeMieux, for the protester. Matthew R. Keiser, Esq., and Jacob S. Stephens, Esq.,  Department of the Army, for the agency. Christopher An, Esq., Evan D. Wesser, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging agency’s rejection of bid because the protester was not a small business is dismissed as untimely.  Although the protester argues the agency was required to treat the solicitation as an unrestricted procurement because it failed to include information required for a small business set-aside--the solicitation also included other information to indicate that it was a set-aside for small business concerns.  This discrepancy regarding the set-aside status of the solicitation created a patent ambiguity the protester should have raised before the closing time for receipt of bids. DECISION M.R. Pittman Group, LLC, of New Orleans, Louisiana, protests the award of a contract to J. Star Enterprise, Inc., a small business of New Orleans, Louisiana, under Invitation for Sealed Bids (IFB) No. W912P8-20-B-0063, issued by the Department of the Army, Army Corps of Engineers, New Orleans District, for the inspection, removal, and repair of the pump units for Wilkinson Canal Pump Station in Plaquemines Parish, Louisiana.  Pittman, which submitted the lowest-priced bid but did not receive the contract because it is other than small, challenges its non-selection for award on the basis that the IFB was not in fact a set-aside for small business concerns.  We dismiss the protest. BACKGROUND On September 14, 2020, the agency published a pre-solicitation notice on the government wide point of entry, beta.SAM.gov, announcing a contract opportunity for repair and maintenance services at the Wilkinson Canal Pump Station.  This notice identified the anticipated procurement as a total small business set-aside under NAICS code 811310.  Agency Req. for Dismissal, Attach. 1, Pre-Solicitation Notice at 1. Subsequently, on December 21, 2020, the agency issued the IFB seeking bids for the required repair and maintenance services.  The agency represents that it intended to issue the IFB as a total small business set-aside.  Contracting Officer’s Statements (COS) at 1.  Consistent with applicable regulations for small business set-asides, the IFB incorporated by reference Federal Acquisition Regulation (FAR) clause 52.219-6, Notice of Total Small Business Set-Aside, and incorporated the full text of FAR clause 52.219-14, Limitations on Subcontracting.  IFB at 36, 50-51; see FAR 19.507(c) and (e) (paragraph (c) provides that FAR clause 52.219-6 must be included in solicitations “involving total small business set-asides,” and paragraph (e) provides that FAR clause 52.219-14 must be inserted in solicitations “if any portion of the requirement is to be set- aside for small business.”). Contrary to the FAR’s instruction for set-aide procurements, however, the IFB did not identify the applicable North American Industry Classification System (NAICS) code or corresponding size standard for the intended small business set-aside.[1]  See FAR 19.501(e) (requiring that “[a]ll solicitations involving set-asides, in total or in part, shall specify the NAICS code(s) and corresponding size standard(s)”) (emphasis added).  The Army received four bids by the January 20, 2021, bid opening; Pittman’s price of $5,547,400 was the apparent low bid, while J-Star’s $6,255,788 price was the third highest bid.[2]  Protest, Exh. 7, Bid Results.  On January 26, the contracting officer notified Pittman that it was ineligible for award because Pittman was other than small under NAICS code 811310.  Protest, Exh.