The protester also challenges the NAICS code identified
for the procurement and contends that the relationship
identified for manufacturers and dealers in the two-tiered
acquisition will preclude dealers from being considered
small businesses. Protest at 26. We, however, lack
jurisdiction to hear challenges of selected NAICS codes,
and to hear size-status challenges. 4 C.F.R. § 21.5(b)(1)
(2012). With respect to the NAICS code selected by the Air
Force, the Small Business Administration (SBA) is given
exclusive authority to review challenges to an agency’s
choice of NAICS code. See FAR § 19.303(c); Expeditions
Int’l Travel Agency, B 252510, June 28, 1993, 93-1 CPD ¶
497 at 4. We also do not agree with Herman Miller that we
must accept its protest challenging the NAICS code,
because it lacks standing, as a large business, to file a
NAICS code appeal at the SBA.
Further, we do not agree that we have jurisdiction to
decide whether the Air Force’s two-tiered acquisition
implicates the affiliation rules of SBA’s size status
regulations. Although Herman Miller asserts that our
Office has previously heard similar challenges, the
decisions to which Herman Miller cites are inapposite. For
example, Herman Miller cites our decision in Med-South,
Inc., B-401214, May 20, 2009, 2009 CPD ¶ 112, for the
proposition that we have jurisdiction to determine whether
a procurement should be set aside for small businesses.
Here, however, Herman Miller is not asserting that the
second tier competition cannot be set aside for small
business competition, but is arguing that the approach may
be considered an affiliation by SBA. For the same reason
as stated earlier, this contention is more appropriately
reviewed by the SBA, than by our Office.
(Herman Miller, Inc.,
B-407028, Oct 19, 2012) (pdf)
HCI
challenges the evaluation of its proposed staffing, the
adequacy of discussions, and the reasonableness of the
source selection decision. HCI also argues that LVFC JV is
not an [service-disabled veteran owned small business]
SDVOSB, and that LVFC JV's proposal was unacceptable
because the joint venture is not properly constituted.
First, HCI argues that LVFC JV is not an SDVOSB joint
venture because a statement on the FedConsulting Internet
site appears to state that the managing joint venture
partner is not an SDVOSB. Supplemental Protest at 3. HCI
also argues that the structure of LVFC JV's joint venture
violates the Small Business Act, Small Business
Administration (SBA) regulations, and guidance issued by
the Department of Veterans Affairs. HCI Comments at 29. In
an attempt to lay a basis for our Office to exercise
jurisdiction for these allegations, HCI argues that the
issues are a matter of proposal acceptability, and it
maintains that its protest does not challenge the status,
ownership, or control of Longview, nor the terms of the
LVFC JV joint venture agreement. Id.
We disagree with HCI's effort to recharacterize an issue
that fundamentally requires a determination of the
validity of LVFC JV's eligibility to compete as an SDVOSB--and
thus challenges the firm's eligibility to compete under
this RFP--as a question of proposal acceptability. In our
view, the question posed is whether LVFC JV is an eligible
SDVOSB, and that question is reserved for determination by
the SBA. Accordingly, we dismiss HCI's grounds of protest
challenging the acceptability of LVFC JV's proposal on
grounds related to the eligibility of LVFC JV as an SDVOSB.
(Hurricane Consulting, Inc.,
B-404619; B-404619.2; B-404619.3, March 17, 2011) (pdf)
The
procurement here is being conducted pursuant to the
Veterans First Contracting Program, created by the
Veterans Benefits, Health Care, and Information Technology
Act of 2006, 38 U.S.C. sections 3127-3128. The program
provides the VA with independent authority to restrict
competition to SDVOSBCs under certain circumstances. 38
U.S.C. sect. 3127(d).
With respect to a firm's eligibility for procurements
restricted to SDVOSBCs under the authority of this
program, 38 U.S.C. sect. 8127(e) states that "a small
business concern may be awarded a contract under this
section only if the small business concern and the veteran
owner of the small business concern are listed in the
database of veteran-owned businesses maintained by the
Secretary [of the VA] under subsection (f)." The
referenced provision, 38 U.S.C. sect. 8127(f), states, in
relevant part:
(1) Subject to paragraphs (2) through (6), the Secretary
shall maintain a database of small business concerns owned
and controlled by veterans and the veteran owners of such
business concerns.
(2) To be eligible for inclusion in the database, such a
veteran shall submit to the Secretary such information as
the Secretary may require with respect to the small
business concern or the veteran.
* * * * *
(4) In maintaining the database, the Secretary shall carry
out at least the following two verification functions:
(A) Verification that each small business concern listed
in the database is owned and controlled by veterans.
(B) In the case of a veteran who indicates a
service-connected disability, verification of the
service-disabled status of such veteran.
As the relevant statutes state that SDVOSBC eligibility is
to be determined on the basis of a list maintained in a
VA-controlled database, and that eligibility for inclusion
on that list is to be determined and verified by the VA,
we conclude that the VA is vested with the authority to
determine a firm's eligibility for SDVOSBC set-aside
procurements conducted under the Veterans First
Contracting Program.
In the context of small business set-aside procurements
under the Small Business Act, we will not review protests
of an awardee's small business size status because the
Act, 15 U.S.C. sect. 637(b)(6), gives the SBA, not our
Office, the conclusive authority to determine matters of
small business size status for federal procurements. Bid
Protest Regulations, 4 C.F.R. sect. 21.5(b)(1) (2010);
Randolph Eng'g Sunglasses, B-280270, Aug. 10, 1998, 98‑2
CPD para. 39 at 3. Here, similarly, the applicable statute
and regulation vest the VA, not our Office, with the
conclusive authority to determine matters of SDVOSBC
eligibility for SDVOSBC set-aside procurements under the
Veterans First Contracting Program. We therefore will not
review the protester's challenge to the awardee's SDVOSBC
eligibility for this award. (TEC/WEST-TEC
JV, B-402573.3, July 30, 2010) (pdf)
Because an agency's choice of a NAICS code is a matter for
review by the SBA, not our Office, this is not a matter
for our consideration. (Triune Associates,
B-292005, May 13, 2003) (pdf)
Our Office will review
the SBA's determinations regarding the issuance of, or
failure to issue, a COC, only where there is a showing
of possible bad faith on the part of government
officials or a failure to consider vital information
bearing on the firm's responsibility. 4 C.F.R. sect.
21.5(b)(2). Where, as here, one offeror protests the
issuance of a COC to a competitor on the ground that the
SBA failed to consider "vital information," we
will consider the protest only where the solicitation
contains definitive responsibility criteria and the
issue raised concerns the competitor's compliance with
those criteria. Eastern Marine, Inc., B-212444.2,
Aug. 28, 1984, 84-2 CPD para. 232 at 4; Surgical
Instrument Co. of Am., B-212653, Nov. 30, 1983, 83-2 CPD
para. 628 at 2; Uniflite, Inc., B-197365, Jan. 23, 1980,
80-1 CPD para. 67 at 2. Here, since neither bad faith
nor a failure to comply with a definitive responsibility
criterion has been alleged, we will not consider the
matter. (Integrity
Management Services, Inc., B-283094.2, May 3,
2000) (pdf)
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