United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Aldevra 

File: B-406608; B-406654; B-406655; B-406656

Date: July 13, 2012

Rodney Marshall for the protester.

Dennis Foley, Esq., Department of Veterans Affairs, for the agency.

Jacqueline Maeder, Esq., and David A. Ashen, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

The Veterans Benefits, Health Care, and Information Technology Act of 2006 

requires the Department of Veterans Affairs to determine whether two or more 

service-disabled veteran-owned small business concerns can meet its requirements 

at a reasonable price before proceeding with Federal Supply Schedule acquisitions.

DECISION

Aldevra, of Portage, Michigan, a service-disabled veteran-owned small business 

(SDVOSB) concern, protests the terms of solicitation Nos. 630-12-3-6429-0566, 

521-12-2-237-0073, VA244-12-Q-0525, and VA260-12-Q-0771,

1 issued by the 

Department of Veterans Affairs (VA) for miscellaneous kitchen equipment for VA 

Medical Centers in, respectively, the Bronx, New York, Birmingham, Alabama, 

Coatesville, Pennsylvania, and Puget Sound, Washington. The protester asserts 

that the agency improperly failed to comply with the requirements of the Veterans 

Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-

8128 (2006) (the VA Act), and its implementing regulations to determine whether 

these procurements should be set aside for SDVOSB (or veteran-owned small 

business (VOSB)) concerns.

We sustain the protests. 

 1 The solicitations were also designated as FedBid Buy Nos. 335889, 337280, 

337667, and 339483, respectively. 
Page 2 B-406608 et al.

The procurements are being conducted pursuant to General Services 

Administration Federal Supply Schedule (FSS) procedures and implementing 

regulations, set forth at Federal Acquisition Regulation (FAR) subpart 8.4. In 

accordance with those regulations, the solicitations were issued on an unrestricted 

basis to vendors holding FSS contracts.

Aldevra asserts that the VA acted improperly by using FSS procedures without first 

conducting market research to determine whether the procurements should be set

aside for SDVOSB (or VOSB) concerns. Aldevra maintains that if the agency had 

conducted market research, it would have found that at least two SDVOSBs could 

meet the requirements under each solicitation at a reasonable price. The agency 

concedes that it did not conduct market research to determine whether two or more 

SDVOSBs (or VOSBs) could meet the requirements under any of the solicitations at 

a reasonable price. Agency E-Mail, June 12, 2012, at 1.

Previously, we sustained protests filed by Aldevra against VA procurements being 

conducted pursuant to FSS procedures in which, like here, the protester asserted 

that the agency failed to comply with the requirements of the VA Act and its 

implementing regulations. Aldevra, B-406205, Mar. 14, 2012, 2012 CPD ¶ 112; 

Aldevra, B-405271, B-405524, Oct. 11, 2011, 2011 CPD ¶ 183. The issue raised 

and the agency’s arguments in the recent Aldevra protests are the same as the 

issue and arguments presented here. 

For the same reasons that we discussed at length in our recent decisions, we reject 

the VA’s arguments in the current protests. Here, as in the previous Aldevra 

protests, the VA has not conducted market research to determine if there are two or 

more eligible SDVOSB (or VOSB) concerns capable of performing the agency’s 

requirements. Consistent with our recent decisions, we conclude that the 2006 VA 

Act requires that the agency make a determination whether these acquisitions 

should be set aside for SDVOSB (or VOSB) concerns prior to conducting the 

procurements using FSS procedures. We therefore sustain Aldevra’s protests.

RECOMMENDATION

We recommend that the agency conduct reasonable market research regarding its 

requirement under these solicitations. If it determines that there is a reasonable 

expectation that two or more SDVOSB (or VOSB) concerns can meet the agency’s 

requirements at a reasonable price, we recommend that the agency cancel the 

solicitations and re-solicit its requirements as SDVOSB (or VOSB) set-asides. We 

also recommend that the agency reimburse the protester the costs of filing and 

pursuing the protests. 4 C.F.R. § 21.8(d)(1) (2012). Aldevra’s certified claims for 
Page 3 B-406608 et al.

costs, detailing the time expended and costs incurred, must be submitted to the 

agency within 60 days after receipt of this decision. 4 C.F.R. § 21.8(f)(1).

The protests are sustained.

Lynn H. Gibson

General Counsel