Miles Construction is a service-disabled veteran-owned small business (\u201cSDVOSB\u201d). \u00a0As such, it enjoys priority when bidding on some federal government contracts. \u00a0It bid on\u00a0a contract for the repair of a storm sewer at the Coatesville,\u00a0Pennsylvania VA Medical Center that was set aside for SDVOSB entities, and it was the apparent low bidder.<\/p>\n
However, another contractor,\u00a0VeteranConstruction & Utility Services, Inc. (\u201cVeteran\u201d), challenged Miles\u2019 eligibility as a SDVOSB\u00a0and lodged a protest with the Solicitation\u2019s contracting officer. \u00a0In the protest letter, Veteran alleged a \u201c[c]ontrol and ownership\u00a0violation\u201d because it believed Miles and a non-SDVOSB had common ownership and\u00a0control, thus rendering Miles ineligible for SDVOSB status. Veteran alleged that an unqualified person was using the service-disabled veteran status of Miles\u2019 owner, Mr. Slizofski, as a \u201cpass thru\u201d from Miles to him.<\/p>\n
The agency agreed that Miles was not properly classified as a SDVOSB. \u00a0Miles filed a pre-award bid protest.<\/p>\n
The government argued that Miles was not \u201cunconditionally owned\u201d by a service-disabled veteran because the company\u2019s operating agreement had a \u201cfirst right of refusal\u201d clause in it. \u00a0Interpreting the relevant\u00a0regulation, 38 C.F.R. \u00a7 74.3, the Court found that the word \u201cunconditional\u201d did not have the dictionary definition and, in this context, a\u00a0right of first\u00a0refusal did not necessarily burden either party with unperformed obligations that would\u00a0constitute a material breach if not performed. (Caution: different regulations define this term differently). \u00a0 The Court agreed with Miles that it was a SDVOSB under this definition.<\/p>\n
Miles had argued the agency improperly considered challenges that were not raised by its competitor, Veteran. \u00a0The Court held that an agency can certainly look beyond the four corners of a protest and is not bound by the scope of the protest; however, it also held that the agency needs to give the target contractor simple due process to let it know what it was considering, and to give it the opportunity for it to respond. \u00a0The agency wrongly did not give Miles this opportunity according to the Court and needed to do so.<\/p>\n
Miles also argued that the agency wrongly re-classified it from a SDVOSB, bypassing the notice, response, waiting period, and appeal rights of such re-classifications per\u00a0\u00a7 74.22. \u00a0However, on this argument, the Court disagreed and held that this was a valid \u201cinformal agency adjudication\u201d under\u00a05 U.S.C. \u00a7 555(b).<\/p>\n
The Court found for Miles, sustaining its bid protest.<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
Miles Construction is a service-disabled veteran-owned small business (\u201cSDVOSB\u201d). \u00a0As such, it enjoys priority when bidding on some federal government contracts. \u00a0It bid on\u00a0a contract for the repair of a storm sewer at the Coatesville,\u00a0Pennsylvania VA Medical Center that was set aside for SDVOSB entities, and it was the apparent low bidder. However, another contractor,\u00a0VeteranConstruction […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":""},"categories":[5],"tags":[],"class_list":["post-1750","post","type-post","status-publish","format-standard","hentry","category-civil-law-business-law-blog"],"acf":[],"yoast_head":"\n