United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

Decision 

Matter of: Vetcorp, Inc. 

File: B-402519 

Date: May 14, 2010 

Ralph C. Thomas III, Esq., Barton Baker Thomas & Tolle, LLP, for the protester. 

Deborah J. Shoemake, Esq., and Megan O. Jorns, Esq., U.S. Army Corps of Engineers; 

and Kenneth Dodds, Esq., and John W. Klein, Esq., Small Business Administration, 

for the agencys. 

Peter D. Verchinski, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. In a commercial item acquisition under FAR subpart 12.6 where price was the 

only factor for award, and where all four offerors submitted the same price, the 

agency reasonably looked to the guidance at FAR § 14.408-6, Equal Low Bids, to 

determine the award priority among equally low-priced small business concerns. 

2. Protest that the agency should have provided the protester with an evaluation 

preference as a Historically Underutilized Business Zone (HUBZone) small business 

concern is denied, where the Small Business Act does not permit the application of 

this preference against small business concerns. 

DECISION 

Vetcorp, Inc., of Frederick, Maryland, protests the award of a contract to 

NaturChem, Inc., of Lexington, South Carolina, under solicitation No. W91278-10-T0017, issued by the U.S. Army Corps of Engineers for an aquatic herbicide. 

We deny the protest. 

BACKGROUND 

The solicitation, issued as a combined synopsis/solicitation on the FedBizOpps 

website pursuant to the Federal Acquisition Regulation (FAR) subpart 12.6, sought 

unit prices for Aquathol K, an aquatic herbicide. The solicitation incorporated the 

following standard clauses: FAR clause 52.212-1, Instructions to Offeror--
Commercial Items; FAR clause 52.212-4, Contract Terms and Conditions-Commercial 

Items; FAR clause 52.212-5, Contract Terms and Conditions Required to Implement 

Statutes or Executive Orders--Commercial Items; FAR clause 52.214-31, Facsimile 

Bids; and Department of Defense FAR Supplement clause 252.225-7001, Buy 

American Act and Balance of Payment Program. The solicitation, however, did not 

specifically identify the basis upon which award would be made or provide 

evaluation factors.1

 The solicitation was amended once to specify the quantity 

sought. 

Four vendors, including Vetcorp and NaturChem, provided unit pricing to the Corps. 

Vetcorp’s quotation identified it as a Historically Underutilized Business Zone 

(HUBZone) small business concern. See Protest, exh. D, Vetcorp Quotation. Two of 

the remaining firms were small business concerns. All four vendors submitted an 

identical unit price for the herbicide. Agency Report (AR), Tab C. 

Because the vendors had identical pricing, the contracting officer (CO) looked to the 

guidance set forth at FAR § 14.408-6, Equal Low Bids, to determine which vendor 

should receive award. CO’s Statement at 1. FAR § 14.408-6 provides for the 

following priority in making an award where an agency receives equal low bids: 

small business concerns that are also labor surplus concerns, other small business 

concerns, and other business concerns. The regulation further provides that if, after 

application of this priority scheme two or more bidders remain equally eligible, 

award should be made by drawing lots. 

The CO concluded that none of the small business vendors here were labor surplus 

concerns, and that the three small business concerns--Vetcorp, NaturChem, and a 

third vendor--were equally eligible for award. CO’s Statement at 2. NaturChem’s 

quotation was selected after the agency drew lots, which was witnessed by three 

people. Id. This protest followed. 

DISCUSSION 

Vetcorp objects to the agency’s reliance on the guidance at FAR § 14.408-6 to 

determine which of the equally-priced quotes would receive award. Vetcorp 

contends that this regulation applies only to procurements conducted using sealed 

bids and that the solicitation here sought “proposals.” See Protest at 3; Comments 

at 2. Vetcorp also contends that, as the only HUBZone small business in this 

competition, it should have received award. Specifically, Vetcorp argues that it is 

entitled to the evaluation preference set forth at FAR § 19.1307(a), which provides 

for a 10 percent price preference for HUBZone small businesses. Vetcorp contends 

 

1

 For example, the agency did not incorporate FAR clause 52.212-2, Evaluation--

Commercial Items. 

Page 2 B-402519 
that the HUBZone price preference must be used to break the tie, instead of drawing 

lots. 

With respect to the contention that the agency could not look to the guidance in FAR 

part 14 because this procurement was not conducted using sealed bids, the Corps 

argues that this was a sealed bid procurement because the solicitation requested that 

“interested bidders . . . submit their pricing information.” Agency’s Response to 

Comments at 1-2. 

As an initial matter, we disagree with the Corps that this procurement was 

conducted on the basis of sealed bidding. A fundamental element of sealed bidding 

is the submission of sealed bids that are publicly opened. See FAR § 14.101, 

Elements of Sealed Bidding. Here, the quotes received were not publicly opened.2 

Rather, as indicated on the face of the combined synopsis/solicitation, this 

procurement was conducted pursuant to the streamlined procedures of FAR subpart 

12.6, which sets forth procedures for the acquisition of commercial items. 

That said, we turn next to whether the Corps could appropriately look to the 

guidance in FAR part 14 to resolve this tie. We conclude that it could. In conducting 

commercial item procurements under FAR part 12, contracting officers have 

discretion to choose among the procedures prescribed in FAR part 13, simplified 

acquisition procedures; part 14, sealed bidding; or part 15, negotiation. See FAR 

§§ 12.102(b), 12.203. Here, the contracting officer looked to FAR § 14.408-6 to 

determine which of the equally low-priced quotes received from small businesses 

should receive award. Vetcorp has not identified any procurement law or regulation, 

or any solicitation provision that the Corps violated in using FAR part 14 to resolve 

this question.3 In fact, even in negotiated procurements conducted under FAR part 

15, we have noted a contracting agency’s use of FAR part 14 procedures for 

determining the award priority among equally low-priced proposals. See, e.g., 

National Medical Staffing, Inc.; PRS Consultants, Inc., B-238694, B-238694.2, June 4, 

1990, 90-1 CPD ¶ 530 at 2 (sustained on other grounds); Martin Tool & Die, Inc., 

B-230915.2, 232780, Aug. 11, 1988, 88-2 CPD ¶ 132 at 2 n.1. 

We turn now to the question of whether the Corps was required to apply the 

HUBZone price preference. The Corps points out that FAR § 19.1307(b) specifically 

 

2

 The Corps states that no vendor requested that it be allowed to attend the “opening” 

of the price quotations. The solicitation, however, did not inform vendors that there 

would be a public opening or that vendors could request to attend. 

3

 Apart from its argument that it should receive the award as a HUBZone concern, 

Vetcorp does not identify the method or procedure the agency should have used to 

determine which of the equally low-priced small business concerns should receive 

award. 

Page 3 B-402519 
provides that the HUBZone preference cannot be applied against “[o]therwise 

successful offers from small business concerns.”4 AR at 5. Vetcorp argues, however, 

that, because all of the small business concerns here submitted identical low prices, 

there is no “otherwise successful offer” from a small business concern, and therefore 

the HUBZone preference can be applied. 

We agree with the Corps that applying a HUBZone preference for Vetcorp in this 

procurement, against the other small business concerns, is inconsistent with the 

Small Business Act. The Small Business Act, in pertinent part, provides: 

in any case in which a contract is to be awarded on the basis of full 

and open competition, the price offered by a qualified HUBZone 

small business concern shall be deemed as being lower than the 

price offered by another offeror (other than another small business 

concern), if the price offered by the qualified HUBZone small 

business concern is not more than 10 percent higher than the price 

offered by the otherwise lowest, responsive, and responsible 

offeror. 

15 U.S.C. § 657a(b)(3)(A) (2006). 

Our Office also sought input from the Small Business Administration (SBA) on this 

issue. The SBA agrees that a HUBZone preference cannot be applied against the 

other small business concerns here.5 Specifically, SBA cites the provision of the 

Small Business Act quoted above, and its own regulations, for the principle that a 

HUBZone preference “cannot be applied to the offer of an [small business concern] 

under any circumstances.” SBA Letter to GAO, Apr. 16, 2010, at 2-3; see also 13 

C.F.R. § 126.613(a)(1). 

 

4

 We also note that the solicitation did not provide for an evaluation preference for 

HUBZone small business concerns. For example, the solicitation did not include 

FAR clause 52.219-4, Notice of Price Evaluation Preference for HUBZone Small 

Business Concerns. We have held that an agency need not apply an evaluation 

preference for a HUBZone small business concern where the solicitation did not 

provide for such a preference. See Goel Servs., Inc., B-310822.2, May 23, 2008, 2008 

CPD ¶ 99 at 2. 

5

 SBA also agrees with the Corps that it does not appear that Vetcorp would be 

entitled to a HUBZone preference in any event, because under SBA’s regulations 

Vetcorp must either manufacture the herbicide or qualify as a HUBZone 

manufacturer. SBA Letter to GAO, Apr. 16, 2010, at 4, citing, 13 C.F.R. §§ 125.6(c)(4), 

126.601(e). 

Page 4 B-402519 
Page 5 B-402519 

In sum, we see nothing unreasonable about the Corp’s reliance on FAR part 14 to 

break this tie, and we think the agency’s decision not to apply the HUBZone price 

preference was consistent with the requirements of the Small Business Act. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel