Mission Analytics, LLC--Reconsideration

Decision

Matter of: Mission Analytics, LLC--Reconsideration

File: B-423165.2

Date: April 15, 2025

DIGEST

Request for reconsideration is denied where requester does not demonstrate that any alleged error of fact or law would alter outcome of decision.

Mission Analytics, LLC, a service-disabled veteran-owned small business (SDVOSB) of Falls Church, Virginia, requests reconsideration of our decision in Mission Analytics, LLC, B-423165, Jan. 28, 2025, 2025 CPD ¶ 35. In that decision, our Office denied Mission’s protest objecting to the Department of Veterans Affairs’ (VA) proposed corrective action in response to an agency-level protest filed by Mission with respect to request for quotations (RFQ) No. 36C26224Q1803, issued for video display monitors. Mission alleges that our decision is based on errors of fact and law.

We deny the request for reconsideration.

BACKGROUND

The agency issued the solicitation on September 5, 2024, as an SDVOSB set-aside, pursuant to the procedures of Federal Acquisition Regulation (FAR) parts 12 (Acquisition of Commercial Products and Commercial Services) and 13 (Simplified Acquisition Procedures) for 86-inch monitors and mounting brackets on a brand name or equal basis. The brand name monitor identified was NEC Display Solutions commercial monitor (model No. M861). In addition to the brand name or equal designation, the RFQ identified eight salient characteristics of the requested product that any offered equal product was required to meet. Protest (B-423165), Req. for Dismissal, exh. 2, RFQ at 9. As relevant here the salient characteristics required the monitor to have LAN and USB connections and an Energy Star rating of 8 or higher. Id.

On September 19, the agency awarded the contract to Aviate Enterprises, Inc. On September 24, Mission filed an agency-level protest with the VA. Mission asserted that Aviate offered to provide the brand name monitor, which was manufactured by a large business. Mission further asserted that Aviate did not comply with the “nonmanufacturer rule” and that no waiver of the nonmanufacturer rule was in place for the monitors, despite the contracting officer’s representation on September 23, that a waiver existed. Req. for Dismissal, exh. 3, First Agency-Level Protest at 3-5.

In this regard, where, as here, a procurement has an assigned North American Industry Classification System (NAICS) code and is set aside for small business, a small business vendor must be the manufacturer or producer of the end item being procured to be eligible to provide products in response to the procurement. 13 C.F.R. § 121.406(a)(1). If the offeror does not manufacture the item being purchased, the “nonmanufacturer rule” provides that the offer of a nonmanufacturer small business concern can be considered if the offeror, among other things, represents that it will supply the product of a domestic small business manufacturer or processor, or if the Small Business Administration (SBA) grants a waiver of this requirement.[1] 13 C.F.R. § 121.406(b).

The VA reviewed the solicitation in response to Mission’s protest. The agency determined that there were errors in the procurement, and further, that the solicitation did not accurately reflect its requirements. The agency decided to take corrective action in response to Mission’s protest, specifically, to terminate the contract award to Aviate, to review its requirements, and to proceed in a manner appropriate to the results of that review. Req. for Dismissal, exh. 3, First Agency-Level Protest at 2.

On October 7, Mission filed a second agency-level protest challenging the agency’s decision to take corrective action. Mission argued that the VA’s intent to cancel the solicitation rather than award to the lowest-priced eligible offeror, Mission, was unreasonable. Req. for Dismissal, exh. 4, Second Agency-Level Protest at 4-6. On October 29, the agency denied Mission’s second agency-level protest. In denying the protest, the agency explained that before deciding to set aside the procurement for SDVOSBs the agency conducted market research to determine if there were two or more SDVOSBs that could meet its needs. At the time the agency conducted the market research, it believed that the SBA had waived the nonmanufacturer rule and that as a result, small businesses could provide the product of a large business, such as the brand name product. The agency came to learn, however, that the SBA had not waived the rule, with the result being that no small business could in fact provide the brand name item. The set-aside decision for the brand name item, or equal, was therefore based on inaccurate information.

The agency explained that because of this error, it needed to conduct additional market research to determine if the solicitation should still be set aside for SDVOSBs. The agency further explained that the solicitation did not meet the agency’s needs because it identified the product of a large business and absent waiver of the nonmanufacturer rule the agency could not accept the product of a large business. The agency also stated that SDVOSB concerns that relied on the solicitation’s representation that they could provide the brand name item had been misled because they would not be eligible for award. The agency concluded that it had a reasonable basis for the corrective action and denied the protest. Id. at 3.

On November 8, Mission filed a protest with our Office challenging the VA’s decision to take corrective action on Mission’s agency-level protest. We denied that protest. We noted that contracting officers in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. 360 IT Integrated Solutions; VariQ Corp., B-414650.19 et al., Oct. 15, 2018, 2018 CPD ¶ 359 at 6. We further noted that the details of implementing corrective action are within the sound discretion and judgment of the contracting agency, and we will not object to corrective action that is appropriate to remedy the concern that caused the agency to take corrective action. MSC Industrial Direct Co., Inc., B-411533.2, B-411533.4, Oct. 9, 2015, 2015 CPD ¶ 316 at 5.

In our decision denying Mission’s protest, we explained that the agency had provided a reasonable basis for its decision to take corrective action by doing additional market research and reviewing its requirements. In reaching our decision we considered the agency’s explanation that additional market research was needed to determine if an SDVOSB could comply with the nonmanufacturer rule, and thus whether restricting the procurement to SDVOSBs was appropriate. We also considered the agency’s position that the solicitation was defective because it indicated that the agency would accept the brand name item, but it would have been impossible for any small business firm to in fact offer the brand name item because the brand name product was manufactured by a large business and SBA had not in fact waived application of the nonmanufacturer rule for the procurement. Finally, we considered the agency’s expressed needs to ensure fairness to vendors, receive an adequate number of acceptable quotations, and promote competition. See Mission Analytics, LLC, B‑423165, supra, at 4.

We also considered Mission’s acknowledgment that the requirement needs to be revised given that the nonmanufacturer rule did not apply. In addition, Mission noted issues with some of the salient characteristics. We stated that Mission identified a potential ambiguity with respect to the USB and LAN connection requirements and asserted that no offeror could provide a product with an Energy Star rating of 8 or higher while also complying with the nonmanufacturer rule. Id. at 5.

We denied Mission’s protest because we concluded that the identified deficiencies in the solicitation supported the reasonableness of the agency’s decision to perform additional market research, review its requirements, and take other action as needed. Mission requests that we reconsider this decision.

DISCUSSION

To obtain reconsideration under our Bid Protest Regulations, the requesting party must set out the factual and legal grounds upon which reversal or modification of the decision is deemed warranted, specifying any errors of fact or law made or information not previously considered. 4 C.F.R. § 21.14(a). The repetition of arguments made during our consideration of the original protest and disagreement with our decision do not meet this standard. 4 C.F.R. § 21.14(c); Epsilon Sys. Solutions, Inc., B‑414410.3, Sept. 20, 2017, 2017 CPD ¶ 292 at 3; Veda, Inc.--Recon., B-278516.3, B-278516.4, July 8, 1998, 98-2 CPD ¶ 12 at 4.

Mission asserts that our decision is based on three errors of fact. First, Mission asserts that our decision incorrectly stated that Mission conceded the requirement needed to be changed because of the application of the nonmanufacturer rule. Req. for Recon. at 1. According to Mission, the nonmanufacturer rule requirement was always included in the solicitation and it made no such concession. Second, Mission contends that it did not argue that the solicitation was ambiguous with respect to LAN and USB connections but rather that there were other methods to meet those connectivity requirements. Id. at 2. Third, while it noted that no product could comply with both the Energy Star and nonmanufacturer rule requirements, Mission also asserted that the agency could award the contract to an offeror that complied with the nonmanufacturer rule and ignore the requirement for compliance with the Energy Star requirement because federal law (the non-manufacturer rule) takes precedence over an agency regulation (compliance with Energy Star). Id. at 1.

Mission also states that our decision is based on two errors of law. First, Mission disagrees that the agency was required to do additional market research to determine if there were two or more SDVOSBs that could meet its needs before it issued the requirement as a set-aside. According to Mission, the agency can award a contract under a procurement that has been set aside for small businesses if it receives only one acceptable offer, as it did here.[2] Id. at 2-3. Second, Mission asserts that our decision failed to recognize that the nonmanufacturer rule applies no matter the dollar value of the anticipated award where, as here, the agency is awarding a set-aside in accordance with FAR subparts 19.8, 19.13, 19.14 or 19.15. Id. at 3.

Even assuming our decision mischaracterized Mission’s arguments regarding the application of the nonmanufacturer rule and the LAN and USB connection requirements, Mission still does not identify any basis to conclude that our Office erred in finding that the agency’s decision to take corrective action was reasonable. Mission does not dispute that there is a conflict between the solicitation requirement that the offered item have an Energy Star rating of 8 or higher and the requirement to follow the nonmanufacturer rule. Req. for Recon. at 1. Mission’s offered item does not have an Energy Star rating of 8 or higher, and Mission asserted in its protest that there is no offeror that can meet the Energy Star requirement and the nonmanufacturer rule together. In its request for reconsideration, Mission again argues that the agency can ignore the Energy Star requirement listed as a salient characteristic and award the contract to an offeror that meets the nonmanufacturer rule. Req. for Recon. at 1; see also Protest (B-423165) Comments to Docket 14 at 5. We considered and rejected this argument during our review of the protest. Mission’s repetition of this argument does not provide a basis for us to reconsider our decision.

In any event, a “brand name or equal” purchase description defines the agency’s need by identifying a particular brand name item, as well as salient characteristics, which are the physical, functional, or performance characteristics that an “equal” item must meet to be acceptable for award. See Glem Gas S.p.A., B-414179, Feb. 23, 2017, 2017 CPD ¶ 60 at 4 n.6. Salient characteristics establish minimum requirements for what is an acceptable, alternate product. Creative Custom Prods., B-417761, Oct. 18, 2019, 2019 CPD ¶ 371 at 6. Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation; a nonconforming product cannot be accepted. See American Government Marketing, Inc., B-294895, Nov. 22, 2004, 2005 CPD ¶ 109 at 1-2. Here, because Mission alleges that the solicitation is structured in such a way such that no vendor can provide a product that meets both the Energy Star requirement and the nonmanufacturer rule, Mission’s own allegations support the conclusion that the agency cannot award a contract under the solicitation as issued.[3] By Mission’s own admission, no offeror can meet the Energy Star and nonmanufacturer rule requirements, therefore the agency reasonably decided to conduct further market research and to review its requirement so that it can proceed with a solicitation that accurately states the government’s requirements.

Moreover, as we noted in our decision, the agency incorrectly believed a waiver of the nonmanufacturer rule applied to the procurement and part of the corrective action was to determine whether the solicitation requirement that restricts competition to SDVOSB concerns is valid. Mission Analytics, LLC, B-423165, supra at 4. Accordingly, the underlying premise supporting the decision to set aside the procurement was flawed and it is reasonable for the agency not to proceed with the existing solicitation.[4]

The request for reconsideration is denied.

Edda Emmanuelli Perez
General Counsel