It’s a bird! It’s a plane! …It’s a Protest?
Faster than a speeding bullet, more powerful than a locomotive, able to leap tall buildings in a single bound. This is how many people in the Government contracting world view GSA’s One Acquisition Solution for Integrated Services (OASIS). But…are Superman’s knees buckling? Ekagra Partners, LLC, may have found kryptonite in its two-pronged GAO protest of the Pool 1 on-ramp that kicked off the OASIS Year of the On-Ramp.
The effects of the protest may already be manifesting in the delays occurring for the next planned OASIS on-ramp: GSA’s OASIS SB 8(a) On-Ramp Presolicitation announcement on FBO first indicated that the on-ramp solicitation would be released on or about February 8, 2019. On February 5, GSA pushed the release to the right, then stating February 21. However, there has been “silence on the line” since GAO delivered its decision on February 15 to uphold one aspect of Ekagra’s protest. This upheld portion of their protest pertained to GSA’s exclusion of “hybrid” Contracting Team Arrangements (CTAs).
In simple terms, the Small Business Administration views an approved Joint Venture (JV) between an SBA sponsored Mentor-Protégé as a single, small business entity, based on the small business classification of the protege. Ekagra’s protest was two-fold:
- GSA limited the number of past performance contract examples performed by large businesses on JVs that it would allow the bidder to use to meet required contract examples. Prior to the original solicitation, if a JV was bidding an opportunity, they had to use past performance of the JV itself. This requirement was in effect when the original OASIS solicitation was released in 2014. Subsequent to that, Congress amended the Small Business Act, allowing the JV to use the past performance of individual members. There was no mention of limitations. In a decision that seemed to split hairs, GAO upheld the GSA requirements, basically saying that there was nothing to prevent them from setting the limits on how many past performance examples of the large business partner it would evaluate. Though Ekagra did not prevail, they definitely presented a solid challenge.
- GAO upheld the second aspect of Ekagra’s protest. GSA said that JVs that formed CTAs by bringing on additional team members were a hybrid CTA and were not allowed. In this case, Ekagra scored by saying that this unfairly limited their ability to compete. SBA looks at the JV between the Mentor and the Protégé as an entity, with the ability to bid as an entity. GSA was incorrect to label CTAs between JVs and other companies as a hybrid CTA. What is very interesting about the GSA argument as to why they thought they could do this, was the disjunctive use of “of” in the Federal Acquisition Regulations (FAR). GSA argued that the challenged solicitation term is consistent with the FAR’s definition of a CTA. In this regard, the agency contended that the disjunctive “or” in FAR § 9.601 anticipates that offerors must propose as either a joint venture or as a prime contractor with one or more subcontractors. Wow! Hard to imagine that it came down to a simple matter of grammar.
There are three interesting questions that potential OASIS SB bidders are likely asking:
- If and how GSA will implement the GAO recommendations? GAO cannot enforce the recommendation but the implications for GSA, if they do not act upon this decision, will be significant given the three additional OASIS SB on-ramps planned this year.
- Will GSA amend the solicitation, reissue it, and provide Ekagra and other SBs the opportunity to respond?
- How will this affect the schedule for the next OASIS 8(a) SB On-Ramp that was meant to come out on February 21, and the OASIS SB Pool 3 and 4 on-ramps planned for later this year?
These are our best guesses:
- If GSA does not implement the GAO recommendations for this upcoming on-ramp, they know that other companies will file the same protest. GSA will likely allow the JV CTA arrangement. But there is a catch: In the GAO discussion of their findings, they mentioned that there is no restriction to how GSA can weight the past performance of the large businesses in the CTA. The whole point of the requirements is to make sure that OASIS SBs who are awarded a contract are capable of being real primes, not a store front for a large business propping them up. GSA may still impose limits on the how the experience of each member of the team is rated as mentioned in footnote number 4:
“4. We note that this issue does not address how much weight an agency may accord to a subcontractor’s experience. As our Office has explained, the significance of, and the weight to be assigned to, a subcontractor’s experience is a matter of contracting agency discretion. Emax Fin. & Real Estate Advisory Servs., LLC, B-408260, July 25, 2013, 2013 CPD ¶ 180 at 6. Our decision here solely addresses whether the agency has justified the solicitation’s prohibition on joint ventures from submitting proposals that rely on subcontractors that are not members of the joint venture. “
-GAO Bid Protest Docket
- Will GSA amend and issue a request for revised proposals for the Pool 1 OASIS SB On-Ramp, as GAO recommended? We’ll just have to wait and see. It will create some headaches, but they will be able to reuse the main solicitation infrastructure.
- When will the OASIS SB 8(a) On-Ramp begin? It has already been delayed, and there has been no new RFP announcement since the sustained protest was announced. Our guess is that there will be some slight delay. However, the GSA OASIS team has proven itself agile and will likely give the kryptonite a hefty toss, course correct to GAO’s recommendations, and will have the solicitation out on the street soon. It is doubtful that the schedule for the other OASIS SB pool on-ramps, expected later in the year, will be affected.
Ekagra did a splendid job of researching and putting together an effective protest. It was also impressive to see the level of due diligence and scrutiny that GAO put into determining the outcome and its recommendations. Team Capture2 will continue to watch this closely to keep you informed of the final outcome and impact on future on-ramp efforts as GSA determines and implements its response to GAO’s recommendations.