Wichita Falls Tri-Tech, LLC (36C78621B0024)

B-420461 Apr 18, 2022 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Wichita Falls Tri-Tech, LLC, a small business of Wichita Falls, Texas, protests the award of a contract to Double Bronze Star Marketing and Consulting Inc., LLC (DBS), a small business of Collin County, Texas, under invitation for bids (IFB) No. 36C78621B0024, which was issued by the Department of Veterans Affairs, for renovations at Fort Sam Houston National Cemetery. The protester contends that the agency unreasonably found the awardee's bid responsive despite failing to include a VETS-4212 report. 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 version has been approved for public release. Decision Matter of: Wichita Falls Tri-Tech, LLC File: B-420461 Date: April 18, 2022 Kristin Zachman, Esq., and Johnathan Bailey, Esq., Bailey & Bailey, P.C., for the protester. Natasha Reed, Esq., Department of Veterans Affairs, 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 the awardee’s bid as nonresponsive for failing to include a copy of a Federal Contractor Veterans’ Employment Report, VETS-4212, at the time of bid submission is denied. Submission of a VETS‑4212 report is a matter of bidder responsibility, not bid responsiveness, and, therefore, the agency reasonably allowed the awardee to provide the required documentation prior to award. DECISION Wichita Falls Tri-Tech, LLC, a small business of Wichita Falls, Texas, protests the award of a contract to Double Bronze Star Marketing and Consulting Inc., LLC (DBS), a small business of Collin County, Texas, under invitation for bids (IFB) No. 36C78621B0024, which was issued by the Department of Veterans Affairs, for renovations at Fort Sam Houston National Cemetery. The protester contends that the agency unreasonably found the awardee’s bid responsive despite failing to include a VETS-4212 report. We deny the protest. BACKGROUND On November 16, 2021, the agency issued the IFB as a service-disabled veteran-owned small business set-aside for the renovation of the historical wall at Fort Sam Houston, Texas. All bids were due by December 15. IFB at 1. The IFB instructed bidders that “[l]ate or incomplete” bids would be considered nonresponsive. Id. at 69. The IFB included a list of documents to be submitted with a complete bid. Among other things, the list of documents called for bidders to include a VETS-4212 report.[1] Id. at 70. The agency opened the sealed bids during a teleconference conducted on December 15. During the bid-opening, the contracting officer read aloud the contents and price of each bid. The contracting officer noted that DBS’s bid did not contain a required VETS-4212 report, despite listing the report in its table of contents. The contracting officer requested that DBS forward the report via email during the call. Contracting Officer’s Statement at 1-2. DBS sent the contracting officer its VETS‑4212 report before the end of the bid-opening process. During the teleconference, the contracting officer announced DBS as the apparent low bidder. On January 10, the agency sent a notice of unsuccessful bid to the protester. Agency Report (AR), Tab 6, Unsuccessful Bid Notice at 1. The next day, on January 11, the agency issued the award to DBS. AR, Tab 10, Source Selection Decision at 2. On January 13, this protest followed. DISCUSSION The protester argues that DBS’s initial bid was incomplete because it failed to include a VETS-4212 report, and, therefore, was nonresponsive. Protest at 4. The protester supports its argument by pointing to the section of the IFB that states “[l]ate or incomplete [bids] will also be considered to be nonresponsive.” Protest at 2 (quoting IFB at 69). Further, the protester cites the IFB’s requirement for a “copy of latest VETS-4212” within the bid itself. Id. Without a copy of its latest VETs-4212, the protester argues DBS’s bid was incomplete, nonresponsive and, therefore, unawardable. The agency counters that the awardee’s failure to submit a copy of its VETS‑4212 report was not a matter of responsiveness, but rather, presented a matter of responsibility. Memorandum of Law at 5. Because the VETS-4212 report documents a company’s employment of protected veterans, the agency argues that the report is one of the many representations and certifications a contractor is required to make in order to be eligible for award, and that such matters concern a bidder’s responsibility, not the responsiveness of the bid itself. Id. According to the agency, the VETS-4212 report is akin to the certification of System for Award Management registration, which our Office has previously found to be a matter of a bidder’s responsibility, rather than the responsiveness of the bid itself.