United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Phoenix Environmental Design Inc. 

File: B-407104

Date: October 26, 2012

C. Chad Gill for the protester.

Peter Kraemer, Esq., Department of Veterans Affairs, for the agency.

Gary R. Allen, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest that the Department of Veterans Affairs (VA) violated the Veterans Benefits, 

Health Care, and Information Technology Act of 2006, and its implementing 

regulations when the VA issued an order to a small business concern, is sustained 

where the VA was aware of service-disabled veteran-owned small business

(SDVOSB) concerns that appeared capable of performing the order, and the 

agency did not determine that it could not expect to receive two or more quotations 

from SDVOSB concerns at fair and reasonable prices.

DECISION

Phoenix Environmental Design Inc., of Plankinton, South Dakota, a service-disabled 

veteran-owned small business (SDVOSB) concern, protests the issuance of 

purchase order No. VA78612P5101 to Golf Enviro Systems, Inc., of Colorado 

Springs, Colorado, a small business concern, by the Department of Veterans Affairs

(VA) for the supply of bagged fertilizer for the Santa Fe National Cemetery, New 

Mexico. The protester complains that the agency’s issuance of the order to a small 

business concern violates the Veterans Benefits, Health Care, and Information 

Technology Act of 2006, 38 U.S.C. §§ 8127–28 (2006) (the VA Act), and the 

agency’s implementing regulations.

We sustain the protest.

BACKGROUND

On July 11, 2012, the agency’s purchasing agent received a request from the 

administrator of the Santa Fe National Cemetery for a specific blend of fertilizer, 
Page 2 B-407104 

which had an estimated value of $4,382. Agency Report (AR) at 2. Given the small 

dollar value of the acquisition, the purchasing agent decided to acquire the fertilizer 

using the simplified acquisition procedures of Federal Acquisition Regulation (FAR) 

Part 13. The purchasing agent searched VA’s VetBiz database, www.vetbiz.gov, 

for possible vendors under North American Industry Classification System (NAICS) 

Code 424910, Farm Supplies Merchant Wholesalers. Statement of Purchasing 

Agent at 1. She found 16 SDVOSB concerns, including Phoenix, none of which 

were located in New Mexico.1 AR, Tab 2, Vendor Information Page.2 The 

purchasing agent contacted three vendors, but not Phoenix, via email seeking 

quotations by July 25. Statement of Purchasing Agent at 2-3. Two of the vendors 

did not submit quotations, and the third submitted a quotation for a different fertilizer 

mix. Id. at 2.

Also on July 25, the purchasing agent contacted Phoenix via email to request a

quotation for fertilizer for the Fort Leavenworth and Fort Scott National Cemeteries

in Kansas. Phoenix was previously issued an order on September 12, 2011, for 

fertilizer for these cemeteries, by the same purchasing agent. Phoenix was not 

informed of the agency’s acquisition for the Santa Fe National Cemetery.

The purchasing agent contacted the director of the Santa Fe National Cemetery

concerning the one quotation the purchasing agent received, but the director stated 

that the fertilizer mix would not meet the cemetery’s needs. Rather than continue to 

try to find two or more SDVOSB concerns, the purchasing agent issued the order to 

Golf Enviro, a small business concern. Statement of Purchasing Agent at 2. 

This protest followed. Performance of the order has been stayed, pending our 

resolution of the protest.

DISCUSSION

Phoenix complains that the agency issued the purchase order to a small business 

concern, where there are two or more SDVOSB concerns that could provide the 

fertilizer to the agency, and without soliciting the protester despite the fact that the 

very purchasing agent involved knew of Phoenix’s interest in fertilizer acquisitions.

As an initial matter, the VA argues that Phoenix is not an interested party, because 

it did not submit a quotation. We disagree that Phoenix is not an interested party to 

 1 The purchasing agent also searched for veteran-owned small business concerns

under NAICS Code 424910, but found none. Statement of Purchasing Agent at 2.

2 VA only provided one of the two pages of this document, which showed six 

SDVOSB concerns, including Phoenix, and another four concerns that were 

undergoing SDVOSB reverification.
Page 3 B-407104 

challenge the agency's actions. Under the Competition in Contracting Act of 1984, 

31 U.S.C. §§ 3551- 56 (2006) and our Bid Protest Regulations, 

4 C.F.R. § 21.0(a)(1) (2012), only an “interested party” may protest a federal 

procurement. That is, a protester must be an actual or prospective bidder or offeror 

whose direct economic interest would be affected by the award of a contract or the 

failure to award a contract. Here, Phoenix is challenging the agency’s failure to 

solicit Phoenix for the order, and the agency’s improper issuance of the order to a 

small business concern where there were other SDVOSB concerns, including 

Phoenix, that could satisfy this requirement. Under these circumstances, Phoenix is 

a prospective offeror whose direct economic interest is affected by the issuance of 

the order to Golf Enviro.

VA also argues that it satisfied the competition requirements of Federal Acquisition 

Regulation (FAR) § 13.104(b) for simplified acquisitions where it solicited quotations 

from three SDVOSB concerns. In using simplified acquisition procedures, agencies 

are required to obtain competition to the maximum extent practicable. See

FAR § 13.104. Where, as here, such procedures are used and notice is not to be 

provided through the FedBizOpps website, the FAR states that

maximum practicable competition ordinarily can be obtained by 

soliciting quotations or offers from sources within the local trade 

area. Unless the contract action requires synopsis pursuant to 

5.101 and an exception under 5.202 is not applicable, consider 

solicitation of at least three sources to promote competition to the 

maximum extent practicable. Whenever practicable, request 

quotations or offers from two sources not included in the previous 

solicitation.

FAR § 13.104(b).

Although we agree that the purchasing agent’s solicitation of three SDVOSBs 

generally satisfied the competition requirements of FAR Part 13, the agency fails to 

recognize Phoenix’s complaint that the acquisition was required to be set aside for 

SDVOSBs and the fertilizer acquired from an SDVOSB concern. We have 

previously sustained protests filed with respect to VA procurements, where, as here, 

the protesters alleged that the VA failed to comply with requirements of the VA Act 

and its implementing regulations. See, e.g., Aldevra, B-405271, B-405524, 

Oct. 11, 2011, 2011 CPD ¶ 183. We noted in those decisions that the VA Act in 

relevant part, 38 U.S.C. § 8127(d), provides as follows: 3

 3 The statute also sets out an order of priority for the contracting preferences it 

establishes, providing that the first priority for contracts awarded pursuant to 

38 U.S.C. § 8127(d) shall be given to SDVOSB concerns, followed by VOSBs. 

38 U.S.C. § 8127(i).
Page 4 B-407104 

[A] contracting officer of [the VA] shall award contracts on the basis 

of competition restricted to small business concerns owned and 

controlled by veterans if the contracting officer has a reasonable 

expectation that two or more small business concerns owned and 

controlled by veterans will submit offers and that the award can be 

made at a fair and reasonable price that offers best value to the 

United States.

The VA issued regulations implementing the VA Act which, as relevant here, state 

as follows:

(a) The contracting officer shall consider SDVOSB set-asides 

before considering VOSB set-asides. Except as authorized by 

813.106, 819.7007 and 819.7008, the contracting officer shall set

aside an acquisition for competition restricted to SDVOSB concerns 

upon a reasonable expectation that:

(1) Offers will be received from two or more eligible 

SDVOSB concerns; and

(2) Award will be made at a fair and reasonable price.

Veterans Administration Acquisition Regulation, 48 C.F.R. § 819.7005(a) (2012). 

Here, it is not disputed that the purchasing agent, in searching for SDVOSB 

concerns to supply the fertilizer for the Santa Fe National Cemetery, found a 

number of SDVOSB concerns, including the protester. In addition, the agency does 

not contend that it had no reasonable expectation of receiving two or more offers 

from SDVOSB concerns at a fair and reasonable price. There also is no analysis in 

the record supporting such a conclusion. Moreover, in this regard, Phoenix, which 

was not solicited, has previously received an order from the same purchasing agent 

to provide fertilizer for other VA national cemeteries. We see no basis on this 

record to conclude that the fertilizer for the Santa Fe National Cemetery could not 

be procured from an SDVOSB concern.

The agency’s only explanation as to why it chose to procure the fertilizer from a 

non-SDVOSB concern is that it had already complied with the requirement to solicit 

three sources in accordance with FAR § 13.104(b). This explanation, however, 

reflects a fundamental misunderstanding of the agency’s obligations under the VA 

Act. While an agency is only required to obtain competition to the maximum extent 

practicable in a simplified acquisition under FAR Part 13, this does not relieve the 

VA of its obligation to comply with the requirements of the VA Act and its own 

implementing regulations.
Page 5 B-407104 

Specifically, absent a reasonable determination that the agency could not expect to 

receive quotations from two or more SDVOSB concerns at a fair and reasonable 

price, the VA was required to continue to conduct this procurement as a set-aside 

for SDVOSB concerns. See Kingdomware Techs., B-406507, May 30, 2012, 2012 

CPD ¶ 165 at 2 (“the plain language of the VA Act mandates that the VA ‘shall’ 

conduct its procurements . . . using an SDVOSB set-aside when there is a 

reasonable expectation that two or more SDVOSB concerns can meet its

requirements at a reasonable price.”) The VA decided not to solicit any of the other 

SDVOSB concerns identified by the purchasing agent, and instead issued this order 

to a non-veteran-owned small business. Accordingly, we find that the agency

violated the VA Act and its own implementing regulations when it issued this order 

to Golf Enviro.

RECOMMENDATION

We recommend that the VA solicit quotations from other SDVOSB concerns, 

including Phoenix. If the agency receives an acceptable quotation from an

SDVOSB concern at a fair and reasonable price, the VA should terminate Golf 

Enviro’s order for the convenience of the government, and issue an order to the 

successful SDVOSB concern. We also recommend that the agency reimburse the 

protester for its cost of filing and pursuing the protest. 4 C.F.R. § 21.8(d)(1) (2012). 

The protester’s certified claim for costs, detailing the time spent and cost incurred, 

must be submitted to the agency within 60 days after receiving this decision.

The protest is sustained.

Lynn H. Gibson

General Counsel