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Even Third Time Not the Charm – GPO Buy for VA Upheld
By Alan Chvotkin
PSC EVP and Counsel
November 6, 2019
I wrote in
about a procurement for suicide prevention locks and associated printing services that was undertaken for the Department of Veterans Affairs (VA) by the Government Publishing Office (GPO). A veteran-owned small business challenged the VA and the GPO procurement at the Government Accountability Office (GAO), at the Court of Federal Claims, and most recently, at the Small Business Administration’s Office of Hearing and Appeals. At each forum, the protestor got more support for its position, but not the relief it sought. Despite their tenacity in pursuing a remedy, this may (or may not) be the end of the road for this procurement challenge.
After GAO urged the VA to coordinate more closely with the GPO, the GPO reissued this procurement on June 13 and chose a “commercial printing” NAICS for the procurement. The protester, repeating an argument it made in its earlier challenges at both GAO and at the Court of Federal Claims, appealed to the Small Business Administration’s Office of Hearing and Appeals (SBA OHA); it argued there that the preponderance of the procurement was for the purchase of the suicide prevention locks and the printing was “an inconsequential percentage of the total contract value,” and thus the better NAICS for describing the principle purpose of the procurement should be one that covers metal hardware and locks. Further, it asserted, “characterizing the procurement as ‘printing’ facilitates the VA’s ability to conduct the procurement through the GPO and not to set-aside the procurement for veteran-owned small businesses.”
But GPO, as a legislative branch agency, objected to OHA’s jurisdiction to challenge their procurement action. OHA agreed it lacked authority to question GPO’s decision and dismissed the protester’s challenge.
Despite the efforts to challenge this procurement through three different forums, the protester failed to get the relief it sought. More significantly, this trilogy of decisions highlights a significant loophole in the federal marketplace for both adhering to the congressional mandate to the VA to give priority to veteran-owned small businesses under the so-called “VA rule of two” and for providing a roadmap to others for circumventing other federal procurement requirements applicable to executive branch agencies, by using GPO for even a miniscule amount of printing for a procurement.
The VA—of all agencies—should review its commitment to fully complying with the spirit (as well as the letter) of the “VA rule of two.” Other executive branch oversight activities and the Congress should be on the alert for other agencies’ efforts to side-step inconvenient procurement regulations without congressional sanction, such as that explicitly granted to some federal agencies to use “other transactions” for limited purposes. We at the Professional Services Council will be watching, as well.