Alaska Native Corporation Loses Bid Protest of Award to AbilityOne Contractor

Last month, the U.S. Court of Federal Claims denied a post-award bid protest of a contract set aside by the National Geospatial-Intelligence Agency (NGA) for AbilityOne Program contractors.  The court found the government correctly considered the impact of the award on the incumbent contractor, an Alaska Native Corporation (ANC), and correctly considered the awardee (an AbilityOne contractor) “qualified” to perform the contract.  The court’s decision is an interesting case on the limits of an Alaska Native Corporation’s rights under the Alaska Native Claims Settlement Act, and on the amount of labor required to be performed by AbilityOne program contractors.  The Ability One program (discussed in more detail in a prior post) assists nonprofits that employ persons with severe disabilities (PWSD) to be awarded contracts by the Committee for Purchase from People who are Blind or Severely Disabled (CFP), after referral by agencies such as the NGA.

AWARDEE MET LABOR REQUIREMENTS TO PARTICIPATE IN ABILITYONE PROGRAM 

The incumbent contractor, Akima Intra-Data, an ANC, protested on the basis that ServiceSource was not a “qualified” AbilityOne contractor  under  The Javits-Wagner-O’Day (JWOD) Act because blind or severely disabled employees would not perform 75% of the contract’s labor. The court denied this protest argument, disagreeing with protestor’s interpretation of the JWOD Act.  The court held the AbilityOne program’s calculation of the 75% direct labor ratio is based on all of the AbilityOne contractor’s work, rather than mandating a 75% minimum for each contract.  The court concluded that “CFP’s reliance on all of ServiceSource’s agency-wide work to find that they were ‘qualified’ and thus eligible to participate in the AbilityOne program was consistent with the statute and was not in violation of the law or any CFP regulation.”

ALASKA NATIVE CORPORATION WAS NOT ENTITLED TO SPECIAL CONSIDERATION UNDER ALASKA NATIVE CLAIMS SETTLMENT ACT

The incumbent contractor, Akima Intra-Data, an ANC, argued that NGA did not give enough consideration to the fact that the award would take away a major revenue source from an ANC.  Akima Intra-Data further argued the Alaska Native Claims Settlement Act entitled them to receive “the maximum practicable opportunity to participate in performing contracts awarded by Federal agencies,” and that the award to ServiceSource  violated the Alaska Native Claims Settlement Act.  The court disagreed, holding as follows: “The JWOD Act does not include or reference any other statutory preference provisions. Indeed, the AbilityOne Program is itself a program designed to provide a preference in the circumstances specified by the JWOD for the benefit of PWSD. Further, the court is not aware of any requirement that CFP must omit from the procurement list contracts where the incumbent enjoys an economically-disadvantaged status by virtue of the Alaska Native Claims Settlement Act.”