Change of SB Set-Aside

[JillElise]

Good morning.  We submitted a proposal for an RFP about 1 year ago.  Within the last 2 weeks the government came back with changes/amendments.  The RFP was originally designated as WOSB Set-Aside.  With the most recent amendment, they changed this from WOSB to EDWOSB.  I'm searching for protests that involve the government changing their acquisition strategy, like changing the small business set-aside, after they've evaluated the proposals.  Has anyone encountered this?  I've seen the government cancel an RFP and then re-release.  But this seems like shenanigans.  I would appreciate your thoughts and experience.  We are discussing with counsel to see if this protest would be successful.  Thank you.

[C Culham]

This protest decision might help you.....

http://www.wifcon.com/cgen/4140684.pdf

[Retreadfed]

Jill, the agency may have valid reasons for doing this.  We simply do not know why this was done.  Without knowing why the agency did so, no one can give an opinion on the chances of a protest being successful.  In this regard, I do not find the decision that Carl cited to be relevant to your issue.  That decision only addressed what an agency is required to do, not what it may do.  Further, the criteria for a small business set aside are different from the criteria for a WOSB set aside which in turn are different from the criteria for an EDWOSB set aside.

[JillElise]

Thanks Retreadfed.  I'm more interested with the governments authority to do this after receipt of proposals, not their reasoning for why.  We already know why through industry intel.  But is the government allowed to make these critical acquisition strategy changes After RFP release and receipt of proposals?  Thanks for contributing.

[formerfed]

Jill,

Agencies should conduct market research prior to making acquisition strategy decisions and release of solicitations.  They shouldn’t be changing things prior to award.

I did a quick search of protest decisions at home and couldn’t find anything relevant.  So I can’t guess on what GAO might think about this situation. 

I know the protest clock is clicking for you.  If I were in your situation, I might submit a protest.  Simultaneously I would request a meeting with the CO to understand their actions.  If the CO won’t respond (which I doubt they will considering everything you said), I would escalate the meeting to senior agency procurement management.  

It seems you are dealing with inexperienced contracting people.  Professional organizations don’t leave solicitations open for a year for example. 

[ji20874]

Was the sole purpose of the amendment to change the set-aside category?

Or, did the amendment also do other things?  For example, did the amendment change the work?  If the amendment changed the work, that might provide cover for also changing the set-aside category.  

[Retreadfed]

17 hours ago, JillElise said:

I'm more interested with the governments authority to do this after receipt of proposals, not their reasoning for why. 

The government's authority to do this is dependent to a large degree upon its reason for doing so.  For example, the government may have discovered that it made a mistake in originally issuing the RFP as a  WOSB set aside instead of an EDWOSB set aside based on the NAICS code assigned to the RFP.  That would be perfectly reasonable and legal.  On the other hand, if the government determined that the apparent winner was a WOSB and wanted to eliminate that contractor from receiving the award by converting the RFP to a EDWOB set aside, that would not be permissible.  In summary, if the government determines that it made a mistake in complying with regulatory or statutory requirements when it issued the RFP, it has authority to correct that mistake after receipt of proposals.