Government Contracts Rule of Two Didn’t Apply to IFB GPO Issued for VA
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Monday, November 18, 2019

Rule of Two Didn’t Apply to IFB GPO Issued for VA

By Government Contracts Editorial Staff

The Court of Federal Claims denied a challenge to the terms of an invitation for bids for suicide prevention gun locks because the Department of Veterans Affairs adequately explained and documented its decision to employ the Government Publishing Office to conduct the procurement, VA was not required to perform a Rule of Two analysis, and GPO reasonably determined it could not set aside the solicitation. VA designated the acquisition as a printing requirement, so GPO issued the IFB under its authority to provide and procure printing services on behalf of the government (44 USC 501–502). The protester filed a protest with the Government Accountability Office, contending the IFB failed to give preference to service-disabled veteran-owned small businesses or VOSBs, as required by the Veterans Benefits Act.

Spirit of Request. The Comptroller General found the VBA’s Rule of Two requirement (31 USC 8127(d)) applied to VA printing acquisitions and recommended GPO coordinate its efforts with VA and give effect to the VBA’s requirements (34 CGEN ¶116,413).The GPO contracting officer then issued a Determination and Findings concluding GPO was obligated to employ competitive bidding, but the CO committed to “accommodate the spirit of VA’s request … by including known/verified SDVOSBs and VOSBs to its Bid List to ensure they receive an opportunity to bid on this IFB.”

Not a VA Procurement. Before the CFC, the protester challenged VA’s invocation of the printing mandate and contended the VBA required VA to conduct the procurement if GPO was unable to adhere to the Rule of Two requirement. However, the record showed VA had encountered difficulty procuring gunlocks and wallet cards printed with suicide prevention information, and it reasonably requested GPO to procure the printing and non-printing components for the sake of efficiency. Further, neither VA nor GPO was obligated to conduct a Rule of Two analysis, because the VBA’s mandate for VA to conduct the analysis applies only if VA is conducting the procurement. VA complied with §8127(i) when it requested GPO to set aside the procurement for SDVOSBs or VOSBs to the “maximum extent feasible.” Finally, GPO reasonably determined VA’s request to set aside the procurement was inconsistent with GPO’s printing regulations. (Veterans4You, Inc. v. U.S., FedCl, 63 CCF ¶81,761)

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