PUBLIC RELEASE DOCUMENT
The decision rendered on the date below was subject to a protective order from the GAO. This redacted version has been approved for public release.
Matter of: Georgia Business Enterprise Program – Vocational Rehabilitation Agency
Date: November 23, 2018
Aron C. Beezley, Esq., Patrick R. Quigley, Esq., William R. Purdy, Esq., Sarah S. Osborne, Esq., and Anna M. Lashley, Esq., Bradley Arant Boult Cummings LLP, for protester .
Scott N. Flesch, Esq., Major Felix Mason, and Andrew J. Smith, Esq., Department of the Army, for the agency.
Katherine I. Riback, Esq., and Amy B. Pereira, Esq., General Counsel’s Office, GAO, assisted in the preparation of the decision.
The Government Accountability Office will not consider protesting the removal of its proposal from the competitive lineup in a solicitation issued under the Randolph-Sheppard Act (RSA) because binding arbitration procedures mandated by the Ministry of Education are planned. under the RSA to resolve the SLA complaint.
The Georgia Business Enterprise Program-Vocational Rehabilitation Agency (GVRA) of Tucker, Georgia, protests the elimination of its proposal from consideration under Request for Proposals (RFP) # W911SF-18-R-0001, issued by the Department of the Army for full service catering at various restaurants located in Fort Benning, Georgia. The challenger asserts that his proposal was improperly excluded from the competitive range.
We reject the protest.
The RFP, issued on February 15, 2018, provided for the award of a single, indefinite-delivery, indefinite-quantity contract with fixed price task orders and a 5-year ordering period. Application for summary dismissal, tab 1, DP at 65, 88. The award was to be made on the basis of the lowest technically acceptable price, taking into account technical ability, past performance and price. Identifier. at 88. The solicitation stated that this procurement would be conducted pursuant to the Randolph-Sheppard Act (RSA), which establishes priority for blind persons represented by State Licensing Agencies (SLAs) under the RSA, in awarding contracts. for, among other things, the operation of cafeterias in federal buildings. ID.; 20 USC § 107; 34 CFR § 395.33(a). So while the RFP generally provided that the procurement was restricted to small businesses owned by disabled veterans, it indicated that the nominated ALC would also be able to submit a proposal. RFP at 50, 68. Under the RSA’s implementing regulations, if a designated SLA submits a bid that is within the competitive range for acquisition, the agency will enter into negotiations only with the SLA, for the purpose of to obtain the services at a reasonable price. reasonable price. 34 CFR § 395.33; Army Regulations 210-25 P. 6.b(1)(b).
On March 22, GVRA, the designated ALC, filed a protest with our Office challenging the terms of the solicitation. GVRA Protest (B-416182), March 22, 2018. On May 2, GVRA withdrew its protest. GVRA-Confirmation of Withdrawal (B-416182), May 2, 2018.
On August 17, the agency informed GVRA that its proposal had been excluded from the competitive line-up because it was “not one of the highest-scoring proposals and had no realistic chance of receiving contract award.” . Protest, Exh. 1, Agency Competitive Range Determination and Debriefing for GVRA (August 17, 2018), p. 1. This protest followed on August 22, in which GVRA argues that its proposal was wrongfully excluded from the competitive lineup.
This contract was made pursuant to the RSA which establishes priority for persons who are recognized and represented by SLAs, such as the GVRA, to be blind in the operation of sales facilities, including cafeterias, in federal buildings. 20 USC § 107; 34 CFR § 395.33(a). The RSA has the stated purpose of “providing the blind with gainful employment, expanding the economic opportunities of the blind, and stimulating the blind to redouble their efforts to become self-sufficient”. 20 USC § 107(a). The RSA directs the Secretary of Education to designate state agencies responsible for training and licensing blind persons, 20 USC § 107a(a)(5), and provides that “[i]n permitting the operation of vending facilities on federal property, priority must be given to persons who are blind and licensed by a state agency. 20 USC § 107(b). For the purposes of this case, the RSA includes cafeterias, snack bars, shelters and counters in the definition of a “sales establishment”. 20 USC § 107e(7). With respect to the operation of cafeterias in federal facilities, the act directs the Secretary of Education to issue regulations to establish priority for blind licensees whenever “such operation may be provided to a reasonable cost with high quality food comparable to that currently provided”. to employees, whether by contract or otherwise. 20 USC § 107d-3(e).
Pursuant to this authority, the Secretary of Education has promulgated regulations meeting the requirements of the RSA. Among the matters covered by these regulations are the rules governing the relationship between SLAs and Blind Sellers, the rules for becoming a Designated SLA within the meaning of the law, the procedures for monitoring SLAs by the Secretary and the rules governing the relationship between SLAs and other federal agencies. 34 CFR part 395. With respect to disputes between SLAs and federal agencies, the law and regulations provide for the filing of complaints with the Secretary, which must then be resolved by binding arbitration. 20 USC § 107d-1(b); 34 CFR § 395.37. Specifically, the regulations, which closely follow the wording of the act, provide the following:
Every time everything [SLA] determines that any department, agency, or instrument of the United States that has control over the maintenance, operation, and protection of Federal property is not in compliance with the provisions of the law or this part and all attempts informal to resolve the issues failed, this licensing agency may file a complaint with the Secretary.
34 CFR § 395.37(a). An arbitration panel would then be established to resolve these SLA complaints, and its decision will be “final and binding”, subject to appeal and review. 34 CFR § 395.37(b).
We have interpreted the RSA and its regulations as conferring authority on the Secretary of Education regarding SLA complaints regarding a Federal agency’s compliance with the RSA. Louisiana State Department of Social Services. Louisiana Rehabilitation Servs., B-400912.2, July 1, 2009, 2009 CPD ¶ 145 at 2; Washington State Service Department. for the Blind, B‑293698.2, April 27, 2004, 2004 CPD ¶ 84 at 3-5; Mississippi State Dept. of Rehabilitation Servs., B-250783.8, September 7, 1994, 94-2 CPD ¶ 99 at 3. In our view, this means that such claims are subject to the binding arbitration provisions of the RSA and should not be entertained. consideration. by our Office under its bid protest jurisdiction. Maryland State Dept. of Education, B-400583, B-400583.2, November 7, 2008, 2008 CPD ¶ 209 at 5. Our view in this regard reflects our more general view that, as here, Congress has entrusted oversight and decision-making authority of a particular federal official or entity, we will not consider protests involving matters under the review of that official or entity. Washington State Service Department. for the blind, supra; see, for example, High Point Sec., Inc. – Recon. and Protest, B-255747.2, B-255747.3, Feb. 22, 1994, 94-1 CPD ¶ 169 at 2 (Small Business Administration determinations under Certificate of Competency Program pursuant to 15 USC § 637(b)(7 ) ); ARA Envtl. Servs., Inc., B-254321, August 23, 1993, 93-2 CPD ¶ 113 at 2 (protest against attribution under the Javits-Wagner-O’Day Act, 41 USC §§ 8501-8506).
Here, GVRA argues that the agency’s assessment of its price was flawed in several material respects. For example, the protest argues that the agency mechanically compared GVRA’s price to the independent government’s cost estimate and failed to take into account its unique approach to performing the work. Protest at 7. The protester also maintains that the suppliers of the competitive range, whose prices were “significantly” lower than those of GVRA, offered insufficient staff. Identifier. at 9. The protester argues that his grounds for protest relate to procurement violations and do not relate to a violation of the FLSA and that, therefore, our Office should review his protest. Demonstrator’s response to motion for summary dismissal at p. 4. In this respect, the demonstrator argues that he did not mention the RSA in his protest. Identifier.
Essentially, the protester argues that his proposal was wrongly excluded from the competitive range because the awarding body determined that his price was too high compared to proposals judged in the competitive range, and that he suffered prejudice as a result. . We acknowledge that, as in the case of Maryland, the protester did not specifically assert a violation of the RSA or its regulations. Maryland State Department of Education, supra. However, like Maryland, the resolution of ALC’s protest against its exclusion from the competitive lineup has specific consequences set out in the RSA’s implementing regulations, which provide that if its proposal were included in the competitive, the agency would enter into negotiations only with the SLA, with the aim of obtaining the services at a reasonable cost. 34 CFR § 395.33(d). By its allegation that the Army improperly eliminated the ALC proposal from the competitive lineup, GVRA’s protest involves a potential violation of the RSA, which, as noted above, provides for binding arbitration. See 34 CFR § 395.37(a). Therefore, the matter should not be reviewed by our Office as part of our bid protest function.
The protest is dismissed.
Thomas H. Armstrong