United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: FitNet Purchasing Alliance

File: B-406075

Date: February 3, 2012

Raul Espinosa for the protester.

MAJ James W. Nelson, Department of the Army; Michael D. Tulley, Esq., General 

Services Administration; and John W. Klein, Esq., and Laura Mann Eyester, Esq., 

Small Business Administration, for the agencies.

Pedro E. Briones, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest challenging an agency’s decision not to set aside for small businesses an 

order under the Federal Supply Schedule (FSS) program is dismissed where the 

protester does not hold an FSS contract, and therefore is not an interested party to 

pursue this matter.

DECISION

FitNet Purchasing Alliance, a small business located in Saint Augustine, Florida, 

protests the terms of request for quotations (RFQ) No. W911RZ-12-T-0001, issued 

by the Department of the Army for a reverse auction among vendors holding 

Federal Supply Schedule (FSS) contracts for fitness equipment. FitNet argues that 

this requirement should be set aside for small businesses.

We dismiss the protest.1

 

1 During the course of the protest we received the views of the General Services 

Administration (GSA), the Small Business Administration (SBA), and other industry 

concerns.
Page 2 B-406075 

The RFQ was posted on the FedBid website for a reverse auction for a dual cable 

cross machine for Fort Carson, Colorado.

2

 RFQ at 1-2; Contracting Officer’s (CO) 

Statement at 1. The solicitation restricted the competition to vendors holding 

contracts under GSA’s FSS No. 7830, Recreational and Gymnastic Equipment.3 

RFQ at 1. The RFQ advised offerors that the FSS contract must either be in the 

offeror’s name or that the offeror must be able to document its ability to act as an 

agent on behalf of an eligible FSS vendor. See id., Instructions, at 1 (hereinafter, 

offeror/agent provision).

FitNet, who does not hold a FSS contract, protests that the requirement must be set 

aside for small businesses under the Small Business Act and contends that the 

Army limited the competition to FSS vendors to circumvent the Act. See Protest 

at 1. The protester urges that we recommend the Army cancel the RFQ and 

reissue the solicitation as a set-aside for small businesses. Protester’s Comments 

at 11.

The Army, citing FitNet Purchasing Alliance, B-309911, Nov. 2, 2007, 2007 CPD 

¶ 201 at 2-3, and Edmond Computer Co.; Edmond Scientific Co., B-402863, 

B-402864, Aug. 25, 2010, 2010 CPD ¶ 200 at 2-3, requests that we dismiss the 

protest, because FitNet is not an interested party to protest the procurement given 

that it does not hold a FSS 7830 contract. See Request for Dismissal at 3-4; 

Agency Report (AR) at 5-6. 

We agree with the Army that FitNet is not an interested party to challenge the terms 

of this solicitation. As explained to FitNet in our prior decision on a nearly identical 

protest, because FitNet does not hold an FSS contract, it is not an interested party 

to challenge the agency’s decision not to set aside the FSS procurement for small 

businesses.4

 

2 FedBid, Inc., is a commercial online procurement services provider that runs a 

website at FedBid.com, which among other things, hosts reverse auctions.

 FitNet Purchasing Alliance, supra, at 2, recon. denied, B-309911.2, 

Jan. 29, 2008. Under the bid protest provisions of the Competition in Contracting

3 The FSS program gives federal agencies a simplified process for obtaining 

commonly used commercial supplies and services. Federal Acquisition Regulation 

(FAR) § 8.402(a). The procedures established for the FSS program are set forth in 

FAR subpart 8.4 and, although streamlined, they satisfy the requirement for full and 

open competition. 41 U.S.C. § 152(3); FAR § 6.102(d)(3) (2010); Savantage Fin. 

Servs., Inc., B-292046, B-292046.2, June 11, 2003, 2003 CPD ¶ 113 at 6; Delta 

Int’l, Inc., B-284364.2, May 11, 2000, 2000 CPD ¶ 78 at 4. 

4 In our prior decision, we considered GSA’s and SBA’s views. SBA continues to 

disagree with our conclusion that FitNet is not an interested party to challenge the 

Army’s decision not to restrict the FSS procurement to small businesses.
Page 3 B-406075 

Act of 1984, 31 U.S.C. §§ 3551-3556 (2006) (CICA), 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. Bid Protest Regulations, 4 C.F.R. 

§ 21.0(a)(1) (2011). A protester is not an interested party where it would not be in 

line for contract award were its protest to be sustained. Four Winds Servs., Inc., 

B-280714, Aug. 28, 1998, 98-2 CPD ¶ 57. Given that the decision was made to 

procure via the FSS, FitNet, which does not hold a FSS contract, is not an 

interested party to protest the terms of the solicitation. FitNet, supra, at 2-3; see 

Edmond Computer Co.; Edmond Scientific Co., supra, at 2-3; accord K-Lak Corp. v. 

United States, 93 Fed. Cl. 749, 755, 756 n.7 (2010) and 98 Fed. Cl. 1, 5, 6 n.7 

(2011) citing, inter alia, FitNet.

FitNet argues that, even though it does not hold an FSS contract, it is “eligible to 

participate in” the procurement under a contractor team arrangement (CTA) with 

another FSS vendor, and is thus is an interested party. See Protest at 1; 

Protester’s Response to GAO Interrogatory at 1. According to FitNet, an offeror 

need not necessarily hold its own FSS contract to bid in this FedBid reverse 

auction, because, as reflected in the RFQ’s offeror/agent provision, FitNet could act 

as an agent for an FSS vendor. Protester’s Response to Request for Dismissal 

at 3; RFQ at 1. FitNet contends that it has since 1995 bid on reverse auctions using 

arrangements with fitness manufacturers who hold FSS contracts.5

 Protester’s 

Response to GSA’s Comments at 3.

GSA disagrees with FitNet’s premise that it can compete for orders under the FSS 

by teaming with another vendor that holds an FSS contract. Specifically, GSA 

states that each member in a CTA must hold its own FSS contract. See GSA’s 

Comments at 1.6

 With respect to allowing agents to bid on behalf of an FSS 

vendor, GSA explains that an FSS vendor is permitted to use a consultant, or 

agent, during or after award, but that the offeror must submit an agent authorization 

letter in that regard pursuant to GSA multiple award schedule solicitation Clause 

SCP-FSS-001, General Proposal Submission Instructions.7

 

5 FitNet provided, as examples of such arrangements, copies of a 2008 agency 

order and vendor quotation, as well as various emails between FitNet and other 

agency officials and vendors, which, according to FitNet, evidence that non-FSS 

suppliers can team with FSS vendors. See Protester’s Response to GAO 

Interrogatory at 1.

 See id., Exhib. 4; 

6 See also GSA FSS schedule 78, Solicitation No. 3FNG-MG-060002-B, standard 

clause I-FSS-40, Contractor Team Arrangements, at 58, available at https://

www.fbo.gov/notices/738acccf41121517d91118e0a706ebc2.

7 FAR § 4.102(e) provides that an agent’s authorization to bind the principal must be 

established by evidence satisfactory to the CO.
Page 4 B-406075 

see, e.g., GSA Solicitation No. 3FNG-MG-060002-B, General Proposal Submission 

Instructions, clause SCP-FSS-001, at iv; RFQ at 1. Moreover, GSA states that FSS 

vendors may use dealers, but any participating dealer must be listed on the 

vendor’s schedule price. See GSA’s Comments at 1-2. Simply put, GSA states, 

without an FSS contract under Schedule 78, FitNet cannot be a CTA member and 

absent documented authorization, FitNet may not act on behalf of a Schedule 78 

contract holder as an agent. Id. at 2.

In our view, the protester misconstrues, and essentially conflates, the terms agent, 

seller, and CTA, as those concepts apply to FAR part 8 procurements and, 

ultimately, to our Bid Protest Regulations under CICA. As GSA indicates, contrary 

to FitNet’s assertion, FitNet has not shown that it is, or could be, a CTA team 

member.8 Moreover, even if FitNet could show--which it has not--that it is an 

authorized agent or participating dealer of a FSS vendor, FitNet would still not be an 

interested party under our rules because FitNet itself would merely be the offeror’s 

agent, not the actual or prospective offeror.9 Although an agent may represent an 

interested party in a protest where it files the protest on behalf of a specified 

interested party and has been authorized to act for that party, see E & R, Inc., 

B-255868, Mar. 29, 1994, 94-1 CPD ¶ 218; Windet Hotel Corp., B-220987, Feb. 6, 

1986, 86-1 CPD ¶ 138, the agent is not itself a prospective bidder or offeror and 

thus is not an interested party to protest on its own behalf. Priscidon Enters., Inc., 

B-220278, Nov. 13, 1985, 85–2 CPD ¶ 549; see also Bulloch Int’l, B-265982, 

Dec. 26, 1995, 96-1 CPD ¶ 5 (An authorized selling agent of a prospective offeror 

under a solicitation is not itself a prospective offeror and thus, where the agent files 

a protest of a solicitation on its own behalf, rather than on behalf of the prospective 

offeror, the agent is not an interested party to pursue the protest.) 

Also, while FitNet contends that this requirement must be set aside for small 

businesses under the Small Business Act, it does not contend that, if the Small 

Business Act is applicable to FSS procurements, the Army could not satisfy the 

 

8 We find no merit to FitNet’s objections to GSA’s views with regard to CTAs, see

Protester’s Response to GSA’s comments at 5-6. Although FitNet argues that there 

is no regulatory requirement that each CTA member hold its own FSS contract, it is 

beyond cavil that orders under the FSS must be awarded only to vendors holding 

FSS contracts. See Brooks Range Contract Servs., Inc., B-405327, Oct. 12, 2011, 

2011 CPD ¶ 216 at 4-5.

9 FitNet has not provided any current authorization letters or any documentation 

establishing that it is currently listed as a participating dealer under a FSS vendor’s 

price schedule. Moreover, the documents submitted by FitNet to support its 

argument that it was member of other CTAs with FSS vendors, actually show that 

FitNet was acting as an agent for an FSS vendor.
Page 5 B-406075 

Act’s requirements by restricting the FSS competition to small businesses.10 In fact, 

in another pending protest in which FitNet challenges a decision of the Department 

of Veterans Affairs to not set aside an FSS procurement for small businesses 

(B-406329), FitNet requested as relief that the agency either conduct the FSS 

procurement as a small business set-aside or conduct a new procurement. See

Protest (B-406329), Jan. 11, 2012, at 1. 

FitNet also contends that a number of recent decisions of our Office show that 

FitNet is an interested party for the purpose of challenging the terms of the Army’s 

FSS procurement here. See, e.g., Protest at 1, citing Delex Sys., Inc., B-400403, 

Oct. 8, 2008, 2008 CPD ¶ 181, and Aldevra, B-405271, B-405524, Oct. 21, 2011, 

2011 CPD ¶ 183. Neither of these decisions indicate that FitNet is an interested 

party to challenge the terms of the RFQ here. In Delex, we found that the small 

business set-aside provisions applied to competitions for task and delivery orders 

under multiple-award contracts. In that case, the protester held a multiple-award 

contract with the procuring agency. See Delex, supra, at 2 n.3. Without such a 

contract, Delex too, would not have been an interested party to pursue its 

challenge. See, e.g., Florida State Coll. at Jacksonville, B-402656, Jun. 24, 2010, 

2010 CPD ¶ 146 at 6 n.5; Outdoor Venture Corp., B-401628, Oct. 2, 2009, 2009 

CPD ¶ 200 at 5 n.2. In contrast, Aldevra involved a requirement to conduct 

set-asides where specific conditions are met under a unique statute specific to the 

Department of Veterans Affairs (VA)--the Veterans Benefits, Health Care, and 

Information Technology Act of 2006. That Act has no application outside VA. 

Finally, and for the record, neither FitNet, nor the SBA, address section 1331 of 

the Small Business Jobs Act of 2010 and its implementing FAR amendments. 

See Pub. L. No. 111-240, 124 Stat. 2504, 2541, title I, subtitle C, part III, § 1331 

(Sept. 27, 2010), codified at 15 U.S.C. § 644(r). Section 1331 directed the Office of 

Federal Procurement Policy, in consultation with GSA, to establish guidance under 

which federal agencies may, at their discretion, set aside orders placed against 

multiple award contracts for small business concerns. See id. (emphasis added). 

Pursuant to the statutory mandate, the FAR Council issued an interim rule 

amending, among other things, FAR §§ 8.405.5, Federal Supply Schedules--Small 

Business; 16.505, Indefinite-Delivery Contracts--Orders, and 19.502-4, 

 

10 The SBA in providing its views on this protest also does not address whether a 

procuring agency could not otherwise comply with the set-aside requirements of the 

Small Business Act by setting aside FSS orders for small business holding FSS 

contracts. 
Page 6 B-406075 

Multiple-award contracts and small business set-asides. While we reach no 

conclusion in this case for this protester--and without the benefit of briefs on 

the issue--section 1331 of the Act, as implemented by amendments to FAR 

§§ 8.405 5(1), 19.502-4(c), appears to address, and possibly settle, this issue.

The protest is dismissed. 

Lynn H. Gibson

General Counsel