In Crosstown Courier Service, Inc., B-414752 (Sept. 2017), the GAO decided a case, which involved an apparent conflict between the Federal Acquisition Regulations (FAR) and the SBA’s regulation on limitation on subcontracting. In short, this case is important because the GAO recognized the agency’s ability to use its own regulations as well as the SBA’s regulations when setting the parameters of a contractor’s limitations on subcontracting/mandatory performance levels even when those provisions are not yet in the FAR.
- RFQ was a set-aside for serviced disabled veteran owned small business for a VA medical lab.
- Award was to be made under the lowest price technically acceptable basis.
- Protestor challenged that the awardee’s quotation “strongly evidences” the awardee’s noncompliance with the Federal Acquisition Regulation (FAR) clause 52.219-14 (Limitation on Subcontracting).
- The GAO noted that the protestor reliance on the FAR clause is misdirected because the VA used its own regulations (VAAR), which incorporates the SBA’s regulation for limitation on subcontracting and similarly situated entities (13 CFR 125.6).
- The GAO went on to cite its own precedence in the whether a small business offeror can comply with a limitation on subcontracting is a matter of responsibility and contract administration, which the GAO will generally not consider.
- The GAO will consider where a proposal, on its face, will lead the agency to conclude that the offeror will not comply with the subcontracting limitation becomes a question of proposal acceptability, which the GAO will consider. That was not the case here, so the GAO dismissed the protest.
- For the case, please click here: GAO VA Similarly Situated Rule