Unami, LLC (20-P-0000-010513)

B-419601 Apr 12, 2021 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Unami, LLC, of Oklahoma City, Oklahoma, protests the Department of the Army's decision not to recommend it for the award of a sole-source contract for installation of cabling services under the Small Business Administration's (SBA) section 8(a) program. Unami asserts that the Army unreasonably characterized the requirement as a follow-on requirement for which Unami is not eligible for award. 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:  Unami, LLC File:  B-419601 Date:  April 12, 2021 Nicole Pottroff, Esq., Quinten Fisher, Esq., Christopher Coleman, Esq., and Shane McCall, Esq., Koprince Law, LLC, for the protester. Andrew J. Smith, Esq., Philip Aubart, Harry M. Parent, Esq., Stephen Hernandez, Esq., Department of the Army, for the agency. Mary G. Curcio, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that procurement under Small Business Administration section 8(a) program should have been designated as a new, and not a follow-on, requirement is dismissed where agency followed applicable regulations in issuing an offering letter to the Small Business Administration for a follow-on requirement. DECISION Unami, LLC, of Oklahoma City, Oklahoma, protests the Department of the Army’s decision not to recommend it for the award of a sole-source contract for installation of cabling services under the Small Business Administration’s (SBA) section 8(a) program.  Unami asserts that the Army unreasonably characterized the requirement as a follow-on requirement for which Unami is not eligible for award.[1] We dismiss the protest. BACKGROUND The cabling services contract is currently being performed by Indigenous Technologies, LLC, a wholly-owned tribal 8(a) company which has graduated from the 8(a) program. See Req. for Dismissal at 2.  On July 28, 2020, to meet its continuing need for the services, the Army issued an offering letter to the Oklahoma SBA district office.  Id.  The offering letter identified the requirement as a follow-on requirement and recommended that a contract be awarded to Unami on a sole-source basis.  Req. for Dismissal, exh. 2, offering letter (Unami) at 2.  Unami and Indigenous are both wholly-owned by the same tribe.  Protest at 2.  On September 4, the SBA notified the Army that while the SBA was preparing its acceptance letter it discovered that the Army identified the contract as a follow-on requirement.  Req. for Dismissal, exh 3, Farris-King email exchange at 1.  The SBA notified the Army that pursuant to 13 C.F.R. § 124.109(c)(3)(ii)(A), a tribally owned 8(a) concern “may not receive an 8(a) sole source contract that is a follow-on contract to an 8(a) contract that was performed immediately previously by another Participant . . . owned by the same Tribe.”  Id.  Consequently, the SBA could not accept the offered sole-source award on behalf of Unami if the requirement was a follow-on requirement.  The SBA further explained that under the applicable regulations, it could accept the award on behalf of Unami if the Army designated the contract as a new requirement.  Id; 13 C.F.R. § 124.504(c)(1)(ii).  The SBA asked how the Army wished to proceed.  Req. for Dismissal, exh. 3, Farris-King email exchange at 1.  In response, the Army informed the SBA that it would change its acquisition strategy.  Id.  On January 26, 2021, the Army issued to the SBA an offering letter, in which it continued to refer to the contract as a follow-on requirement, and requested the SBA accept the contract as a sole-source award to a different identified 8(a) participant.  Req. for Dismissal, exh. 6, offering letter (GC&E).  On February 16, the SBA accepted the award on behalf of the newly identified 8(a) participant.  Req. for Dismissal, exh.7, SBA offering letter acceptance. This protest followed. DISCUSSION Unami protests that the Army unreasonably designated the procurement as a follow-on requirement.  According to Unami, the requirement is actually a new requirement for which it would be eligible to receive an award on a sole-source basis. The Small Business Act affords SBA and contracting agencies broad discretion in selecting procurements for the 8(a) program; we will not consider a protest challenging a decision to procure under the 8(a) program absent a showing of possible bad faith on the part of government officials or that regulations may have been violated.  4 C.F.R. § 21.5(b)(3); Rothe Computer Solutions, LLC d/b/a Rohmann Joint Venture, B-299452, May 9, 2007, 2007 CPD ¶ 92 at 3.