Mountainside Medical Equipment, Inc. | U.S. GAO

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Matter of:  Mountainside Health care Machines, Inc.

File:  B-419839

Date:  June 25, 2021

Dana B. Pashkoff, Esq., Jessica C. Abrahams, Esq., and Lauren N. Olmsted, Esq., Faegre Drinker Biddle & Reath LLP, for the protester.
Kathleen Ellis, Esq., and Steven Devine, Esq., Office of Veterans Affairs, for the company.
Mercedes Wilson-Barthes and Christina Sklarew, Esq., Business office of the Basic Counsel, GAO, participated in the planning of the final decision.


Protest challenging an agency’s selection to make award to a company that the protester alleges is not a confirmed a services-disabled veteran-owned compact small business is dismissed the place the protester is ineligible for award and therefore lacks the requisite interest to manage the protest.

Mountainside Professional medical Equipment, Inc., of Marcy, New York, protests the award of a agreement to Magellan Remedies United states of america Inc., of Brisbane, California, beneath request for quotations (RFQ) No. 36C242-20-Q-0920, issued by the Office of Veterans Affairs (VA) for the provision of phone switchboard operators at the agency’s James J. Peters Medical Center in Bronx, New York.  The protester, a support-disabled veteran-owned small company (SDVOSB), argues that the company has improperly made the award to a firm that is not a confirmed SDVOSB, as demanded by the solicitation, and that the company could not satisfy the “rule of two” need for VA tiny-business enterprise set asides.[1]

We dismiss the protest on the basis that the protester is not an interested social gathering and the protest does not set up a legitimate basis for challenging the agency’s action.

The RFQ, issued on September 15, 2020, contemplated the award of a contract for “all personnel [and] supervision for the Switchboard Assistance requirement.”  Req. for Dismissal, exh. 1, RFQ, at 3.  Between other matters, the RFQ necessary sellers to

[s]ubmit signed and dated gives to the office specified in this solicitation at or right before the exact time specified in this solicitation. Provides may well be submitted on the SF 1449, letterhead stationery, or as if not specified in the solicitation. As a least, gives will have to show—

*  *  *  *

(9) Acknowledgment of Solicitation Amendments[.]

Id. at 56.

The company 2 times amended the solicitation, every single time extending the quotation submission deadline.  The VA states that 4 vendors, together with Mountainside and Magellan, submitted quotations.  Just after the initial of the two amendments, Mountainside submitted a well timed quotation having said that, Mountainside did not indicator and return possibly of the two amendments.  Req. for Dismissal, at 2.

In a January 14, 2021 e-mail to the protester, the agency discussed that since Mountainside’s quotation did not accept receipt of possibly of the amendments, the quotation was incomplete and consequently could not be deemed for award.  Req. for Dismissal, exh. 5, Company Protest Dismissal, at 6.

In its initial protest filing, Mountainside states that its quotation was excluded from the agency’s evaluation process “for good reasons not applicable to the current protest.”  Protest at 3.  Having said that, we find that the agency’s conclusion in this regard–that Mountainside’s failure to acknowledge the amendments rendered its quotation ineligible for award–has direct bearing on the threshold situation of whether or not the protester has the requisite lawful interest to problem the award.

Beneath the bid protest provisions of the Level of competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3557, only an “interested party” may well protest a federal procurement.  That is, a protester must be an precise or future bidder or offeror whose immediate economic interest would be afflicted by the award of a contract or the failure to award a deal.  Bid Protest Restrictions, 4 C.F.R. § 21.(a)(1).  Determining irrespective of whether a get together is interested includes consideration of a assortment of elements, such as the character of difficulties raised, the advantage or relief sought by the protester, and the party’s status in relation to the procurement.  RELM Wireless Corp., B-405358, Oct. 7, 2011, 2011 CPD ¶ 211 at 2.  A protester is not an fascinated occasion where it would not be in line for contract award, have been its protest to be sustained.  Id.  In this article, due to the fact the company located Mountainside ineligible for award dependent on its failure to admit the amendments as demanded by the solicitation–a willpower that Mountainside did not timely obstacle–the protester lacks the requisite fascination to protest the award.

Mountainside nevertheless asserts that it is an intrigued social gathering in this occasion simply because if the agency cancelled the solicitation and reissued it, as the protester promises ought to be expected, Mountainside would then be ready to compete.  Protest at 1.  For the causes reviewed underneath, this argument is unavailing.

The protester alleges that the agency could not meet up with the VA “rule of two” necessity set forth in the Veterans Added benefits, Wellness Care, and Facts Technological know-how Act of 2006, 38 U.S.C. § 8127(d), since Magellan allegedly was not a verified SDVOSB (i.e., “an entity discovered in the VA’s centralized databases as a SDVOSB”).  Protest at 3.  Mountainside also argues that it “understands” both a person or both of those of the two “arguably valid” SDVOSBs that submitted quotations were not “capable of performing the get the job done at a good and reasonable rate.”  Protest at 3-4.  

The need for the VA to set aside acquisitions for SDVOSBs, usually referred to as the VA’s “rule of two,” states, as applicable below, that “a contracting officer of the [VA] shall award contracts on the foundation of level of competition restricted to smaller business issues owned and controlled by veterans . . . with company-related disabilities if the contracting officer has a acceptable expectation that two or more tiny business enterprise problems owned and managed by veterans . . . with provider-linked disabilities will post gives and that the award can be designed at a good and realistic price tag that presents very best benefit to the United States.”  38 U.S.C. § 8127(d).

Mountainside’s argument that due to the fact the company allegedly did not get two or additional compliant quotations from SDVOSBs displays a elementary misunderstanding of what the statute needs.  In small, 38 U.S.C. § 8127(d)(1) demands an agency to set aside a procurement for specific veteran-owned smaller organizations or SDVOSBs when the contracting officer has a fair expectation that, between other factors, it will receive quotations or features from two or much more SBVOSBs and award can be manufactured at a honest and sensible price.  That is to say, the statutory specifications relate to VA’s choice to go after a established-apart as an first issue, prior to the receipt of quotations.[2]  Alternatively, the protester indicates that the reasonableness of the agency’s contemporaneous set-apart conclusion should really be judged on the foundation of the quotations that ended up finally submitted, or, stated differently, data that was not obtainable at the time the established-apart determination was created. 

We have previously said that information and facts that very first results in being available after issuance of a established-apart solicitation does not reveal that a contracting officer’s prior final decision regardless of whether to established aside the procurement was unreasonable.[3]  See, e.g., Crosstown Courier Serv., Inc., B‑410936, Mar. 12, 2015, 2015 CPD ¶ 107 at 4 Jacqueline R. Sims, dba JRS Staffing Servs., B‑409613, B‑409613.2, June 16, 2014, 2014 CPD 181 at 4, recon. dismissed, B-409613.3, Feb. 20, 2015.

Our Bid Protest Laws, 4 C.F.R. §§ 21.1(c)(4) and (f), need that a protest include a comprehensive assertion of the lawful and factual grounds for the protest, and that the grounds stated be lawfully ample.  These necessities contemplate that protesters will supply, at a least, possibly allegations or proof ample, if uncontradicted, to establish the chance that the protester will prevail in its claim of inappropriate agency motion.  Midwest Tube Fabricators, Inc., B‑407166, B‑407167, Nov. 20, 2012, 2012 CPD ¶ 324 at 3.  Listed here, Mountainside has not alleged a legally cognizable violation of the “rule of two,” nor involved enough factual or legal bases for its protest, and therefore does not meet up with this normal.  Accordingly, Mountainside’s reliance on its rule-of-two argument to establish the firm’s status as an intrigued get together is misplaced.  See 4 C.F.R § 21.5(f).

The protest is dismissed.

Edda Emmanuelli Perez
Standard Counsel

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