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Always, Always Check beta.SAM.gov – Part 2

by | Dec 18, 2020 | Government Contracts

With all the time and effort a contractor spends on marketing for new opportunities, it’s a shame when a missed opportunity had been previously announced on beta.SAM.gov – twice. We cannot stress enough how important monitoring beta.SAM.gov is. Several months ago, we reported on a GAO decision that concluded that the contractor lost the chance to file a timely protest because the contractor had failed to see the award notice in beta.SAM.gov. Recently, a contractor’s failure to monitor beta.SAM.gov prevented the contractor – a service-disabled veteran-owned small business (SDVOSB) – from challenging the agency’s decision to not set it aside for SDVOSB firms.

When the Department of Veterans Affairs (VA) needed a contractor to do testing and maintenance of the safety systems at its Long Beach Healthcare System campus, its planning for the solicitation included doing a market survey. That survey focused initially on SDVOSBs as well as veteran-owned small businesses (VOSB) as the law requires. If the VA could find at least two SDVOSBs or VOSBs that could do the work at a fair and reasonable price, the VA would set the solicitation aside for SDVOSBs or VOSBs.

The VA’s market survey included research in its Vendor Information Pages (VIP) database but that was not successful. Next, the agency published a sources sought notice seeking expressions of interest from SDVOSB and VOSB concerns. This notice identified two possible vendors, an SDVOSB and another small business believed to be able to do the VA’s work.

Having found at least two small businesses that could do the work, the agency decided to set the work aside for a small business. The VA also got the concurrence of the cognizant small business liaison who agreed that the procurement should not be set aside for SDVOSBs or VOSBs based on the results of the agency’s market research.

The VA made one more attempt to identify possible vendors. It posted a pre-solicitation notice announcing the solicitation and seeking small business vendors interested in providing a proposal. After getting no small business responses, the VA issued the solicitation as a small business set-aside.

Now another small business appeared – HurtVet Subcontracting, a SDVOSB. It filed a protest to the VA and then to GAO arguing that the work should be set aside for an SDVOSB.

HurtVet had one potentially-promising argument: the agency’s market survey was inadequate because, in the words of GAO, HurtVet’s “search for SDVOSBs in the Long Beach area on the agency’s own website displays dozens of qualified businesses.”

Unfortunately, GAO was not convinced the VA acted unreasonably. “The VA’s investigation must address not only the existence of small businesses that might submit proposals, but also their capability to perform the contract. HurtVet has proffered no evidence to show that any of the firms identified in its search have the capability to meet the agency’s requirements here.”

More significantly, HurtVet had missed the two notices of the pending solicitation. It had not replied to the sources sought notice nor to the pre-solicitation notice. According to GAO, “the protester itself effectively contributed to the outcome of the agency’s market research by failing to respond to either the sources sought or the pre-solicitation notices. Simply stated, in the absence of a response from eligible potential SDVOSB or VOSB concerns such as the protester, there is no way for the agency to divine the interest or capabilities of such businesses.” GAO denied the protest.

Although the decision did not help HurtVet, there are lessons in it for other small businesses. First, obviously, it is essential to closely monitor all opportunities in beta.SAM.gov. Second, make yourself known to small business advocates within an agency. Here, the VA’s small business advocate was involved in the market survey. Finally, if a small business wants to invalidate an agency’s search of the VIP database, it cannot simply show how many SDVOSBs were in the local area; the small business must go on to show how many of those firms could meet the agency’s need, an additional step that HurtVet did not take.

HurtVet Subcontracting, LLC, B- 419139, Dec. 2, 2020.

Terry O’Connor is a Partner and Director of Government Contracts at Berenzweig Leonard.