Disappointed Bidder Must Challenge SDVOSBC Eligibility before the Department of Veteran's Affairs - Not the GAO

8.11.2010 - Posted in E&B Alerts - Government Contracts

The GAO recently denied a bid protest alleging an apparent bid winner was not eligible for a contract set aside exclusively for service-disabled veteran-owned small business concerns (SDVOSBC).

In TEC/WEST-TEC JV, B-402573.3 (July 30, 2010), the disappointed bidder alleged that the designated awardee was not eligible for the SDVOSBC set-aside because the service-disabled managing partner did not control the day to day operations of the joint venture, and because component firms of the joint venture exceeded regulatory limits on the number of contracts that can be awarded to a joint venture. In its decision, the GAO held that the Department of Veterans Affairs (VA) retains authority to designate, and maintain a list of, eligible SDVOSB Concerns. Drawing an analogy to the Small Business Administration's (SBA) designations of small businesses size status, the GAO determined that it lacked jurisdiction to review protests of a company's eligibility for SDVOSB set-asides. Thus, because the challenge was brought in an inappropriate forum, the GAO denied the protest.

When dealing with procurements involving set-asides, challenges to a competitor's status must be brought before the agency with authority to determine eligibility for the program at issue, such as the SBA or the VA. However, keep in mind that while the GAO will not review challenges to a contractor's eligibility for a set-aside, it retains jurisdiction over protests involving other aspects of a decision to award a set-aside contract. The text of the decision is available at http://www.wifcon.com/cgen/4025733.pdf.If you have any questions about the SDVOSBC contracting or other set aside programs, please contact Tim Connellyat [email protected] or (612) 236-0160.