United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

DOCUMENT FOR PUBLIC RELEASE 

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Six3 Systems, Inc. 

File: B-404885.2 

Date: October 20, 2011 

Jennifer S. Zucker, Esq., Jon W. Burd, Esq., and John R. Prairie, Esq., Wiley Rein LLP, 

for the protester. 

Capt. Bernal Rodriguez, Department of the Army, for the agency. 

Jennifer D. Westfall-McGrail, Esq., and Edward Goldstein, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Protest challenging agency decision to set aside acquisition for small business 

competition is denied where record demonstrates reasonable basis for contracting 

officer’s determination that at least two capable small businesses may be expected 

to submit offers. 

DECISION 

Six3 Systems, Inc., of McLean, Virginia, protests the decision by the Department of 

the Army Intelligence and Security Command (INSCOM) to set aside for small 

business competition request for proposals (RFP) No. W911W4-11-R-0004, for 

identity intelligence (I2) biometrics services. The protester contends that the 

contracting officer unreasonably determined that two responsible small businesses 

were capable of satisfying the RFP’s requirements at fair market prices. 

We deny the protest. 

BACKGROUND 

The RFP at issue contemplates a total small business set-aside, multiple-award, 

indefinite-delivery/indefinite-quantity contract under North American Industrial 

Classification System (NAICS) code 541690, with a size standard of $7 million. The 

solicitation identifies the areas to be supported as including program management, 

I2 resource management, and strategic planning; intelligence analysis, production, 

and dissemination; forensic-related biometric operations support and production; I2 

education and awareness; deployed biometrics and forensics subject matter experts; 
architecture and enterprise services support; data sharing development, 

management and support; information assurance and intelligence oversight support; 

counter biometric capability support; and biometric modality development. RFP, 

amend. 0002, at 6. The solicitation sets out four sample task orders, and offerors are 

to describe their approaches to accomplishing the sample task orders in their 

technical proposals. 

Prior to deciding to set aside the solicitation here for small businesses, the agency 

issued three sources sought notices (dated Nov. 24, 2009, Apr. 19, 2010, and July 29, 

2010) and a combined presolicitation announcement/advisory multi-step notification 

(AMS).1 After reviewing the responses to the first two sources sought notices and 

the AMS, the contracting officer determined that small businesses lacked the breadth 

of capabilities and experience necessary for successful performance of the 

requirements, and, accordingly, that the acquisition should not be set aside for small 

business. After reviewing the results of the third sources sought notice, which 

differed from the preceding two in that it sought information regarding the 

capabilities of small businesses’ teaming partners, as well as the small businesses 

themselves, the contracting officer reversed his previous finding and determined that 

“there [were] a sufficient number of small businesses professing the capability to 

provide the required I2 Biometrics support.” Small Business Coordination Record 

(DD Form 2579), Aug. 26, 2010. The agency’s small business specialist concurred 

with the contracting officer’s determination that the acquisition should be set aside 

for small businesses. Among the firms determined to have the capabilities to 

perform were [deleted]. 

On January 12, 2011, the agency issued the RFP as a total small business set-aside. 

On March 14, prior to the closing date for receipt of proposals, Six3 filed a protest 

with our Office objecting to the set-aside determination. On April 14, the agency 

notified our Office that it intended to reevaluate the market research to determine if 

the decision to set aside the acquisition for small business was proper.2

 We 

dismissed the protest as academic. Six3 Systems, Inc., B-404885, Apr. 25, 2011. 

 

1

 In the advisory multi-step process, the agency publishes a presolicitation notice that 

provides a general description of the scope or purpose of the acquisition and invites 

potential offerors to submit information that allows the Government to advise the 

offerors about their potential to be viable competitors. The agency then evaluates 

the responses and advises each respondent either that it will be invited to participate 

in the competition or that it is unlikely to be a viable competitor. Federal Acquisition 

Regulation (FAR) § 15.202. 

2

 The current contracting officer, who was appointed to that role in January 2011 

(that is, after the determination to set aside the acquisition for small businesses had 

been made), explained that before proceeding with the set-aside, she wanted to 

conduct her own market research and analysis to verify the determination that there 

were small businesses capable of handling the effort. 

Page 2 B-404885.2 
The current contracting officer reviewed the responses to the most recent sources 

sought notice and found that two small businesses, [deleted] and [deleted], were 

capable of performing, and that four other small businesses looked either “very 

promising” or “promising”--that is, while she could not conclude, based on the results 

of her research, that they had the capability to perform, she thought it likely that the 

proposals of some, if not all, would demonstrate such capability. The contracting 

officer verified the firms’ representations regarding their capabilities by reviewing 

their websites and searching various Government databases (e.g., the Central 

Contractor Registration and Dynamic Small Business system). 

On July 22, the contracting officer notified protester’s counsel that she had 

completed her review and determined that the solicitation would remain a small 

business set-aside. On July 25, Six3 protested the contracting officer’s determination 

to our Office. 

DISCUSSION 

Under Federal Acquisition Regulation (FAR) § 19.502-2(b), a procurement with an 

anticipated dollar value of more than $150,000, such as the one here, must be set 

aside for exclusive small business participation when there is a reasonable 

expectation that offers will be received from at least two responsible small business 

concerns and that award will be made at fair market prices. The use of any 

particular method of assessing the availability of small businesses is not required so 

long as the agency undertakes reasonable efforts to locate responsible small 

business competitors. National Linen Serv., B-285458, Aug. 22, 2000, 2000 CPD ¶ 138 

at 2. The decision whether to set aside a procurement may be based on an analysis 

of factors such as the prior procurement history, the recommendations of 

appropriate small business specialists, and market surveys that include responses to 

sources sought announcements. SAB Co., B-283883, Jan. 20, 2000, 2000 CPD ¶ 58 at 

1-2; PR Newswire, B-279216, Apr. 23, 1998, 98-1 CPD ¶ 118 at 2. Because a decision 

whether to set aside a procurement is a matter of business judgment within the 

contracting officer’s discretion, our review generally is limited to ascertaining 

whether that official abused his or her discretion. ViroMed Labs., B-298931, Dec. 20, 

2006, 2007 CPD ¶ 4 at 3. We will not question a small business set-aside 

determination where the record demonstrates a reasonable basis for the contracting 

officer’s conclusion that small business competition may be expected. Id.

In its initial protest, Six3 argued that a small business meeting the specified size 

standard of $7 million could not possibly have the personnel required to meet the 

solicitation’s requirements; it was unlikely that a small business would be capable of 

successfully deploying qualified personnel immediately after award due to high 

demand for individuals with the required skill sets; small businesses were unlikely to 

have the infrastructure necessary to recruit, train, and manage the necessary 

personnel; and small businesses were not financially capable of performing. The 

protester further argued that the sources sought notice failed to elicit information 

Page 3 B-404885.2 
that INSCOM needed to assess the capability of small businesses to perform, and 

that the small businesses might be intending to rely on large business partners to an 

improper extent. 

The agency responded to these arguments in its report, maintaining that both 

[deleted] and [deleted] were rapidly growing companies that had demonstrated the 

capability to take on larger workloads; the protester had failed to furnish any 

support for its claim that small businesses were unlikely to be able to deploy 

qualified personnel (and to the extent that there was any validity to the protester’s 

argument regarding high demand for personnel with biometrics-related 

qualifications, it would apply equally to large businesses); the protester had 

presented no evidence that small businesses lack the infrastructure to recruit, train, 

and manage employees and subcontractors, and the protester’s own experience 

demonstrated that it was possible for a small business to gear up for a substantially 

increased workload quickly; and the protester’s argument that small businesses 

lacked the financial resources for performance was speculative. The agency further 

argued that the contracting officer had reviewed sufficient information to allow her 

to make an informed business judgment that offers from at least two small 

businesses that were capable of performing could reasonably be expected, and that 

the protester’s argument regarding improper reliance upon large business partners 

was speculative. 

In commenting on the agency report, the protester did not seek to rebut the Army’s 

responses to the above arguments, but instead challenged the reasonableness of the 

contracting officer’s finding that [deleted] and [deleted] were capable of satisfying 

the RFP’s requirements.3

 In this connection, the protester asserted that to set aside 

the procurement for small business, the contracting officer had to determine that 

offers would be obtained from at least two responsible small businesses, and that to 

be determined responsible, prospective contractors had to demonstrate, among 

other things, a satisfactory performance record and the necessary organization, 

experience, and technical skills to perform, or the ability to obtain them. Protester’s 

Comments at 9. Six3 contends that the contracting officer did not reasonably assess 

whether [deleted] and [deleted] had the skills, experience, and organization 

necessary for successful performance, and that the record does not contain evidence 

supporting the contracting officer’s conclusion that both companies had good past 

performance. 

At the outset, we note that the protester incorrectly asserts that before making a 

small business set-aside determination, a contracting officer must determine that 

offers will be received from two or more responsible small businesses. The FAR 

does not require a determination that offers will be received from two or more 

 

3

 We consider the protester to have abandoned the arguments that it did not pursue 

in its comments. 

Page 4 B-404885.2 
responsible small businesses--it requires only a determination that offers from two or 

more responsible small businesses may reasonably be expected. Moreover, in 

making set-aside decisions, agencies need not make either actual determinations of 

responsibility or decisions tantamount to determinations of responsibility with 

regard to prospective offerors; they need only make an informed business judgment 

that there are small businesses expected to submit offers that are capable of 

performing. ViroMed Labs., supra, at 3-4. 

In our view, the record here demonstrates a reasonable basis for the contracting 

officer’s conclusion that both [deleted] and [deleted] are capable of performing. In 

their responses to the sources sought notice, prospective offerors were asked to self 

assess their teams’ skill level in each of ten biometric functional areas on a scale of 

1-5, with 1 representing little or no experience and 5 representing a high level of 

experience. [Deleted] represented that its team had a skill level of 4 or 5 in eight of 

the required functional areas, and a skill level of 3 in a ninth area, whereas [deleted] 

represented that its team had a skill level of 4 or 5 in nine of the required functional 

areas, and a skill level of 3 in the tenth area.4

 The contracting officer found that both 

companies had grown significantly in the past year, demonstrating, in her view, that 

they were capable of taking on a sizeable workload increase and enlarging their 

operations to meet the requirements of the RFP. The contracting officer also found 

that both had good past performance, both had provided fair and reasonable pricing 

on other government contracts, and neither had delinquent federal debt.5

Six3 also alleges that [deleted] no longer qualifies as a small business because its 

average annual revenue for the past 3 years has exceeded $7 million. According to 

the protester, the contracting officer should have recalculated [deleted] average 

annual receipts in July 2011 using information regarding recent sales that [deleted] 

had posted on its website. We disagree. [Deleted] represented in its response to the 

sources sought notice that it was a small business under NAICS code 541690 and a 

 

4

 In the tenth area, [deleted] rated its skill level as a 1; however, it represented in its 

response to the sources sought notice that while it did not currently possess the 

capabilities to support the task, it would be able to fill the need by recruiting 

additional subject matter experts. 

5

 While the protester maintains that the contracting officer improperly failed to 

document the basis for her finding that both companies had good past performance--

that is, according to the protester, the contracting officer’s statement in her market 

research summary that she had been able to validate that both companies had good 

past performance was not enough, and she should instead have identified the 

particular contracts on which she based her finding--we do not agree that such 

documentation was required. As previously noted, the contracting officer was not 

required to make documented determinations as to the responsibility of the 

prospective small business offerors as part of her set-aside determination. 

Page 5 B-404885.2 
Page 6 B-404885.2 

 

service-disabled, veteran-owned small business, and that it was not scheduled to 

graduate from any small business programs within the next 365 days; moreover, the 

contracting officer verified that [deleted] continued to be certified as a small 

business when she conducted her summer-2011 market research. The contracting 

officer’s reliance upon [deleted] self-representations and information available in the 

Dynamic Small Business database was clearly reasonable.6

Finally, Six3 argues that the contracting officer did not adequately document the 

basis for her finding that there was a reasonable expectation of award at fair market 

prices. We disagree. The contracting officer found that both [deleted] and [deleted] 

had provided fair and reasonable pricing under other government contracts, 

including an INSCOM multiple-award ID/IQ contract with an overall value of $492 

million (the “Omnibus III” contract), and that it was evident from their work on the 

Omnibus III contract that “both [deleted] and [deleted] [were] able to provide fair 

market support to large requirements in both a U.S. and overseas setting.” 

Contracting Officer’s Memorandum for Record, Aug. 22, 2011, at 8. We think that it 

was reasonable for the contracting officer to conclude, based on the two offerors’ 

general history of providing fair and reasonable pricing and on their specific history 

of providing fair and reasonable pricing under the Omnibus III contract, which has 

similarities to the contract here, that award at fair market prices could be expected 

here. We also note that the task orders to be issued under the multiple-award 

contract here will be competed among the awardees, and that the agency thus has a 

reasonable basis to anticipate price competition, resulting in fair market prices, for 

the task orders. 

The protest is denied. 

Lynn H. Gibson 

General Counsel 

6

 Moreover, the protester’s argument that the contracting officer should have 

recalculated [deleted] average annual revenue on the basis of a partial fiscal year 

using information taken from the firm’s website is unreasonable and inconsistent 

with the guidance furnished in Small Business Administration regulations, which 

provide for the use of federal income tax returns (or documentation such as audited 

financial statements) to determine size status. See 13 C.F.R. §121.104(a).