GAO DENIES ARMY MOTION TO DISMISS ON THE BASIS THAT
FITNET IS NOT AN INTERESTED PARTY
From: FitNet Hqts.
Sent: Wednesday, November 23, 2011 5:24 PM
To: 'Briones, Pedro'
Cc: 'Nelson, James W MAJ MIL USA OTJAG'; 'Govt. Contracting Office'
Subject: FitNet B-406075 GAO Protest: ARMY REQUEST FOR DISMISSAL DENIED
Mr. Briones,
I wish to acknowledge GAO’s decision to deny the Army's Request for dismissal of my GAO
protest challenging the Army’s alleged diversion of contracts away from small businesses
through the Fedbid reverse auction procurement vehicle. The Army’s Request for Dismissal
claimed that “FitNet is not an interested party to bring up the protest.” I understand that
GAO now will be entertaining the merits of a protest with major implications to the small
business reservation.
For the record, the GAO protest not only alleged that the Army did not restrict a Fedbid
reverse auction 'Buy' between $3,000 and $150,000 for small businesses as per the
requirements of the Small Business Act statutes and the unambiguous intend of Congress, as
promulgated by FAR 19, but that the Army is allegedly using and abusing the internal Fedbid
reverse auction rules to circumvent the FAR, offer preferential treatment, avoid SBA small
business coordination and ignore numerous SBA processes that protect the rights and
procurement opportunities of small businesses.
The above assessment is consistent with the SBA Office of Advocacy 2008 r3 Initiative which
had scheduled “the reverse auction rules for an overhaul” as noted on this link,
http://bit.ly/vsb6EG. The Office of Advocacy r3 Initiative list the nation's “Ten Worst
regulatory offenders of small businesses" and, for the record, neither OFPP nor the
regulators have done anything, since 2008, to overhaul those rules nor to bring them up to
par with the current SBA processes that protect the rights and opportunities of small
businesses.
GAO, for the record, has never addressed “the reverse auction rules” on its decisions in
spite of the fact that they have been used as tools of the ‘GSA Exemption’ to allegedly
divert Billion in FSS contracts away from the small business reservation for over a decade!
Frankly, I welcome GAO’s decision to seek the views of GSA as to whether it is permissible,
on reverse auctions, “to allow FSS vendors to team with non‐FSS firms,” using simple ‘teaming
arrangements’ which comply with FAR 9.6 given the fact that many GSA schedule holders are
not members of the Fedbid community. Your referencing the language used by Fedbid that “the
seller must be able to document its ability to act as an agent of a partners schedule," is,
in itself, another Fedbid rule, whose compliance – along with the compliance of the rest of
the Fedbid rules ‐ have never been addresses by GAO. For the record, the reverse auction
Fedbid procurement vehicle is operated by Fedbid under a GSA contract.
I further welcome your action to “ask(ed) the agency (the Army) to address this same matter
in their agency report.” I trust this request will include all the alleged discriminatory and
bias Fedbid rules referenced on my GAO protest. A more detailed description of the allegedly
unfair and bias rules were detailed on a document titled “Petition to the Army for
Transparency and Oversight of its Procurement Practices” which I had incorporated into the
record in response to one of the filings.
I wish to remind the Army, as referenced on my GAO Objection to their Motion, of my request
for them to incorporate, on their Agency Report, "the alleged Market Research Report
supporting their selection and the documents claiming that the Army secured SBA coordination
for small business participation. . . including the information used on the ATP (Authorized
Target Price) the Army used on the Buy.”
In conclusion, I would expect for GAO – in fairness to justice and to my due process – to
welcome the opinion of SBA and the Office of Advocacy following the filing of the Army’s
Agency Report and the GSA views. Both SBA and the Office of Advocacy are interested parties
in terms of dealing with rules that protect small businesses and with ‘teaming arrangements’
that allow them to thrive in government contracting.
Thank you, in advance, for your consideration,
Raul Espinosa, President
FitNet Purchasing Alliance
904.599.9920
Raul.Espinosa@FitNet.net
‐‐‐‐‐Original Message‐‐‐‐‐
From: Briones, Pedro
Sent: Tuesday, November 22, 2011 11:02 AM
To: 'Nelson, James W MAJ MIL USA OTJAG'; 'raul.espinosa@fitnet.net'
Subject: B‐406075, FitNet: REQUEST FOR DISMISSAL DENIED
Importance: High
We find that summary dismissal is not appropriate at this time. Therefore, we are
reinstating the agency report, which shall now be due by 10am next Tuesday, November 29. In
its report, we would like the agency to address the protester's rebuttal to the request for
dismissal, as well as whether it is permissible in a procurement conducted under FSS
procedures to allow FSS vendors to team with non‐FSS firms. We refer in this regard to
language in the RFQ that the "seller must be able to document its ability to act as an agent
of a partners schedule." We will also request GSA's views on this matter and permit the
agency and protester to comment on GSA's views.
Mr. Espinosa: FitNet's comments on the agency report will be due 10 days after its receipt
of the agency report, per our Bid Protest Regulations. We will not accept piecemeal
submissions and our Office will not engage in a continuing dialogue via email on the merits
of FitNet's protest. As I mentioned earlier, our bid protest process does not envision such
an informal back‐and‐forth on substantive protest matters. We therefore expect the protester
to submit only one set of comments to the agency report and, if and when we receive GSA's
views, we will issue a scheduling order for further pleadings in that regard.
Regards,
PEDRO E. BRIONES
Senior Attorney,
Procurement Law Group
Office of the General Counsel
U.S. Government Accountability Office (GAO)
(202) 512‐2587
(202) 512‐9749 fax
BrionesP@gao.gov