EH Group, Inc. (unknown)

B-419946.2 Mar 25, 2022 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights EH Group, Inc., a small business of Eclectic, Alabama, protests the decision by the Department of the Air Force to not fund its proposal under small business innovation research (SBIR) commercial solutions opening No. X20.3, Topic No. AF203-CSO2, Space Force pitch day. The protester challenges the agency's evaluation of its proposal, and raises other challenges to the agency's handling of the procurement. We deny 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:  EH Group, Inc. File:  B-419946.2 Date:  March 25, 2022 John J. Brooks III, Esq., John Brooks Law, LLC, for the protester. Isabelle P. Cutting, Esq., and Colonel Frank Yoon, Department of the Air Force, for the agency. Raymond Richards, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1.  Protest challenging an agency’s consideration of “importance to agency programs” and “fund availability” as unstated evaluation criteria is denied where the procurement was conducted as a commercial solutions opening and the relevant authority requires consideration of those factors. 2.  Protest challenging the agency’s decision not to transfer to another agency the protester’s non‑funded phase I proposal submitted in response to a small business innovation research solicitation is denied where the protester fails to show that the agency acted in bad faith or violated any law or regulation. 3.  Protest challenging the agency’s evaluation of the protester’s proposal under one of three primary evaluation factors is denied where there is no possibility of competitive prejudice to the protester. DECISION EH Group, Inc., a small business of Eclectic, Alabama, protests the decision by the Department of the Air Force to not fund its proposal under small business innovation research (SBIR) commercial solutions opening No. X20.3, Topic No. AF203‑CSO2, Space Force pitch day.  The protester challenges the agency’s evaluation of its proposal, and raises other challenges to the agency’s handling of the procurement.   We deny the protest. Background The SBIR program is conducted pursuant to the Small Business Innovation Development Act.  15 U.S.C. § 638.  The statute requires certain federal agencies to reserve a portion of their research and development (R&D) funding for awards to small business concerns.  Id. §§ 638(e)(4), (f).  The program has three phases.  In phase I, firms submit proposals to conduct research or R&D on specified topics.  Id. § 638(e)(4).  Phase I awardees may become eligible to compete for phase II awards which would involve prototyping, id. § 638(e)(4)(B), and phase III awards which would involve further pursuit of work derived from, extending, or completing efforts made under prior SBIR funding.  Id. § 638(e)(4)(C).  The use of commercial solutions openings (CSOs) as a form of general solicitation was permanently authorized under section 803 of the fiscal year (FY) 2022 National Defense Authorization Act (NDAA).[1]  NDAA for FY 2022, Pub. L. No. 117‑81, § 803, 135 Stat. 1541, 1814‑1816 (2021).  Department of Defense (DOD) guidance on the use of CSOs is found in Class Deviation‑Defense Commercial Solutions Opening, 2022‑O0007, Feb. 4, 2022.[2]  Under a CSO, the agency competitively selects proposals received in response to the general solicitation based on a review of proposals by scientific, technological, or other subject‑matter expert peers.  Proposals are not evaluated against each other since they are not submitted in response to a common performance work statement or statement of work.  Id.  Rather, each proposal is evaluated against the criteria specified in the solicitation, with primary focus being given to the following factors:  (1) technical; (2) importance to agency programs; and (3) fund availability.  Id. On August 25, 2020, the Air Force pre‑released the CSO seeking phase I and direct to phase II proposals from small business concerns.[3]  AR, Tab 3, CSO at 1, 16, 34‑35, 38.  The CSO sought proposals for “innovative, commercial technologies proposed to create new [Air Force] solutions or potential new capabilities fulfilling requirements, closing capability gaps, or providing potential technological advancements.”  Id. at 5, 16.  The CSO listed seven topic areas.  Relevant here, topic No. AF203‑CSO2 (Space Force pitch day) sought innovative technology in the areas of sensors, electronics, space platform, materials, information systems, human systems, and battlespace.  Id. at 67. The CSO explained that all phase I awards would be fixed‑price purchase orders with a maximum value of $50,000, and that the total number of phase I awards was dependent on available funds.  Id.