United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Swank Healthcare

File: B-407367

Date: December 12, 2012

William M. Weisberg, Esq., and Liana W. Yung, Esq., Bryan Cave LLP, for the 

protester.

Jo Spence, Esq., Department of Veterans Affairs, for the agency.

Paula J. Haurilesko, 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 small business set-aside decision under a 

procurement conducted pursuant to the Federal Supply Schedule procedures of 

Federal Acquisition Regulation Subpart 8.4 is denied where the protester does not 

show that the agency violated any law or regulation.

DECISION

Swank Healthcare, of St. Louis, Missouri, protests the terms of request for 

quotations (RFQ) No. VA777-12-Q-0257, issued by the Department of Veterans 

Affairs (VA) for commercial off-the-shelf online courses. Swank, a large business 

concern, complains that the RFQ should not have been set aside for small 

businesses.

We deny the protest.

BACKGROUND

The RFQ, issued under the Federal Supply Schedule (FSS) procedures of Federal 

Acquisition Regulation (FAR) Subpart 8.4 as a small business set-side, sought a 

minimum of 500 commercial off-the-shelf clinical online courses for 100,000 

Veterans Health Administration healthcare providers and staff covering multiple 

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.
Page 2 B-407367 

clinical disciplines.1 RFQ at 5. The RFQ provided for the award of a fixed-price 

contract for a base year and 2 option years. Id. at 8. Vendors were informed that 

award would be made on a lowest-priced, technically acceptable basis, considering 

technical capability, past performance, and price. Id. at 25-26. Price was to be 

evaluated for reasonableness and realism. 

In determining to set aside the RFQ for small businesses, the VA conducted market 

research and identified five small business concerns holding FSS contracts. VA 

Dismissal Request, exhib. 2, Acquisition Plan, at 5-6. The VA reviewed each small 

business concern’s technical and subject matter expertise and sample client list and 

concluded that they could perform the requirement. For example, one firm 

represented that it had expertise in online medical education and included the VA 

among its clients, while another firm with expertise in audio and visual instructional 

materials included the American Association of Critical Care Nurses among its 

clients. Id. at 5. 

The agency issued the RFQ to these five small business concerns, and received 

quotations from two of them. Agency Report at 1, 3.

This protest followed.

 

DISCUSSION

Interested Party

As an initial matter, the VA requested that we dismiss Swank’s protest, arguing that 

Swank was not an interested party to challenge the agency’s decision to set aside 

this procurement for small business, because Swank is a large business and 

therefore not eligible for award. VA Dismissal Request at 2. Under our Bid Protest 

Regulations, an interested party is “an actual or prospective bidder or offeror whose 

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

failure to award a contract.” 4 C.F.R. § 21.0(a)(1) (2012). Swank is an interested 

party to challenge the agency’s decision to set aside the procurement for small 

businesses, because if we were to sustain the protest, the protester would be 

permitted to compete for award.2

 

1 The estimated value of this acquisition is $4.4 million. VA Dismissal Request, 

exhib. 2, Acquisition Plan, at 1.

2 Although not argued by the VA, it is not clear that a complaint objecting to an 

agency’s decision to set aside a FSS procurement for small business concerns 

states a valid basis for protest. As we otherwise find the protest has no merit, we 

do not address this argument
Page 3 B-407367 

Set-Aside Decision

Swank argues that the requirement here is too large and complex for a small 

business to successfully perform, and that the agency did not properly document 

the basis for the set-aside determination. Protest at 3; Comments at 2-3.

The FAR provides that, although the preference programs of FAR Part 19 are 

generally not applicable to procurements under the FSS procedures of FAR 

Subpart 8.4, an agency may, in its discretion, set aside orders for any of the small 

business concerns identified in FAR § 19.000(a)(3).3

 See FAR § 8.405-5(a). Here, 

the record shows that the VA exercised this discretion to set aside the RFQ for 

small businesses, after identifying five small business concerns holding FSS 

contracts that could perform this work. Moreover, the VA received quotations from 

two apparently responsible small businesses in response to the RFQ. See York Int’l 

Corp., B-244748, Sept. 30, 1991, 91-2 CPD ¶ 282 at 7 (receipt of offers from small 

businesses supports an agency’s determination to set aside a procurement for 

small businesses). Although Swank disagrees with the agency’s decision to set 

aside this FSS procurement for small businesses, it does not show that the agency 

violated any law or regulation in doing so. 

Swank also complains that the VA did not verify each small business concerns’ 

ability to meet all of the requirements of the solicitation prior to making its set-aside 

decision. Comments at 2-3. There is no merit to this complaint. Agencies are not

required to make actual determinations of responsibility or decisions tantamount to 

determinations of responsibility in determining whether to set aside a procurement. 

See, e.g., Ceradyne, Inc., B-402281, Feb. 17, 2010, 2010 CPD ¶ 70 at 4.

The protest is denied. 

Susan A. Poling

General Counsel

 

3 Swank also generally complains that the VA did not consider whether all of the 

requirements of FAR Part 19 are met. See Comments at 2. This does not state a 

valid basis for protest, given that the requirements of FAR Part 19 generally do not 

apply to orders under FSS contracts. See FAR §§ 8.404(a), 8.405-5(a). In any 

event, Swank does not identify which FAR Part 19 requirements it contends are 

applicable here.