CueBid Technologies, Inc. d/b/a CueBid BioDefense
Highlights
CueBid Technologies, Inc., doing business as CueBid BioDefense, a small business of Edinburg, Texas, protests the Department of the Army's decision to cancel, rather than amend, request for quotations (RFQ) No. W9115125Q0005 for equipment washdown services. CueBid also protests the establishment of several blanket purchase agreements (BPA) and the issuance of a call order for equipment sanitization services under the BPA issued to Titan Associates Group, Inc., of Athens, Tennessee. The protester further asserts that the Army failed to stay performance of the equipment washdown services, as required by the Competition in Contracting Act (CICA) in response to its earlier protest of the terms of solicitation No. W9115125Q0005. The protester also contends that the agency's issuance of the call order to Titan violated the stay of performance put in place by the Small Business Administration's (SBA) Office of Hearings and Appeals (OHA) in response to CueBid's North American Industry Classification System (NAICS) code challenge to that office.
Decision
Matter of: CueBid Technologies, Inc. d/b/a CueBid BioDefense
File: B-423161.7
Date: June 4, 2025
Eyal Ben-Gal, for the protester.
Lieutenant Colonel Nolan T. Koon, Department of the Army, for the agency.
Kenneth Kilgour, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protests challenging the cancelation of the solicitation, the failure to amend the solicitation, and the establishment of blanket purchase agreements (BPAs) are dismissed as untimely.
2. Allegation that the call order was outside the scope of the BPA is dismissed for failure to state a valid basis of protest where the protester overlooked that the agency had amended the scope of the BPA.
3. Protest that the agency unreasonably issued a call order under the BPA is dismissed where the protester is not an interested party to assert the allegations.
4. Protest that the agency failed to properly override a Competition in Contracting Act stay of performance is dismissed as not for this Office’s consideration.
5. Protest that the agency failed to abide by a stay ordered by the Small Business Administration’s Office of Hearings and Appeals is dismissed for failure to state a valid basis of protest.
DECISION
CueBid Technologies, Inc., doing business as CueBid BioDefense, a small business of Edinburg, Texas, protests the Department of the Army’s decision to cancel, rather than amend, request for quotations (RFQ) No. W9115125Q0005 for equipment washdown services. CueBid also protests the establishment of several blanket purchase agreements (BPA) and the issuance of a call order for equipment sanitization services under the BPA issued to Titan Associates Group, Inc., of Athens, Tennessee. The protester further asserts that the Army failed to stay performance of the equipment washdown services, as required by the Competition in Contracting Act (CICA) in response to its earlier protest of the terms of solicitation No. W9115125Q0005. The protester also contends that the agency’s issuance of the call order to Titan violated the stay of performance put in place by the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) in response to CueBid’s North American Industry Classification System (NAICS) code challenge to that office.
We dismiss the protest.
BACKGROUND
When a unit deploys overseas, the Army must wash its equipment to remove debris and hazardous material from all surfaces before disinfecting the equipment to specific agricultural sanitation and disinfection customs standards. Req. for Dismissal at 2. On November 4, 2024, in preparation for a December 2024 deployment, the Army issued RFQ No. W9115125Q0005, with the intent to award one fixed-price contract for operational washdown services for Army equipment.[1] Protest, exh. 3, RFQ amend. 00001 at 1; Req. for Dismissal at 3. The closing date for receipt of quotations was November 8, and the period of performance was November 12-15. Id.
On November 6, CueBid protested the terms of the solicitation with our Office, asserting that the RFQ requirements were ambiguous and violated procurement law and regulation. See Protest, exh. 11, Initial Protest. On November 13, CueBid challenged the NAICS code assigned to the solicitation with SBA’s OHA. Protest, exh. 8, CueBid NAICS Appeal; see also exh. 10, OHA Order at 1 n.1 (noting that the after-hours filing on November 12 was counted as having been filed on November 13). On November 15--one week after the November 8 closing date for receipt of quotations--OHA ordered a stay of the closing date of receipt of quotations pending the resolution of the NAICS code challenge. Protest, exh. 10, OHA Order at 2.
Rather than amend the RFQ, the Army used troop labor to accomplish the washdown services. Req. for Dismissal at 3. On November 15, after Army personnel had completed washing the machinery, the Army issued a call order for sanitation services to Titan under an existing BPA.[2] Req. For Dismissal, exh. 1, BPA Call Order at 1. That same day, the Army posted notice of the issuance of a call order to Titan on FPDS.gov--the Federal Procurement Data System. See Protest, exh. 13, Notice of Award of BPA Call Order. On November 21, the Army requested dismissal of CueBid’s protest because the agency had used troop labor to perform the washing requirement and was cancelling the solicitation. Req. for Dismissal, exh. 2, Req. to Dismiss Initial Protest at 1. On November 25, this Office dismissed the protest. See CueBid Technologies, Inc. d/b/a CueBid BioDefense, B-423161 et al., Nov. 25, 2024 (unpublished decision).[3]
On February 19, 2025, CueBid learned of the issuance of the call order to Titan for the sanitation services. Protest at 2. CueBid filed this protest March 3, asserting various violations of procurement law and regulation.
DISCUSSION
CueBid alleges that the agency unreasonably canceled--and failed to amend--the RFQ and that the agency’s establishment of the three BPAs was improper. We dismiss those allegations as untimely. We dismiss as failing to state a valid basis of protest the allegation that the issuance of a call order to satisfy this requirement was outside the scope of the of the BPA. CueBid argues that the issuance of the call order to Titan was improper; the protester is not an interested party to bring that challenge, and we dismiss it on that basis. Finally, CueBid alleges that the agency improperly failed to leave in place the stays of performance required under CICA and by OHA. We dismiss the allegation related to the CICA stay as not for GAO’s consideration and dismiss the allegation regarding the OHA stay as failing to state a valid basis of protest.[4]
Timeliness of Challenges to the Cancelation of the Solicitation
The Army argues that any challenges to the agency’s decision not to amend the RFQ--and to cancel it instead--are untimely. Reply to Objection at 12-13, citing 4 C.F.R. § 21.2(a)(2) (a protest must generally be filed no later than 10 days after the protester knew or should have known the basis of protest). The agency notes that it posted notice of the cancelation to SAM.gov on November 26, 2024.[5] Req. for Dismissal, exh. 7, Notice of Cancelation. The Army contends that CueBid thus knew on November 26 the basis for its protest, namely, that instead of amending the solicitation the agency had canceled it. CueBid did not respond to the agency’s argument that these allegations are untimely. See Resp. to Agency Reply (not addressing any issues of timeliness). Because CueBid did not protest the Army’s November 26, 2024, cancelation of the RFQ until March 3, 2025, we agree with the Army that the allegations related to the cancelation are untimely and dismiss them.[6] 4 C.F.R. § 21.2(a)(2).
Allegations Regarding the Establishment of the BPAs
CueBid asserts various challenges to the establishment of BPAs with Titan and two other firms. The Army contends these allegations are likewise untimely. Reply to Objection at 16, citing 4 C.F.R. § 21.2(a)(2). The record includes CueBid’s search of FPDS, using “W9124823A2001” as the search term. Protest, exh. 12a, FPDS Award Records, Feb. 18, 2025. That identifier--W9124823A2001--is the number of the BPA the Army issued Titan. Protest, exh. 12a, FPDS Award Records, Feb. 18, 2025, at 1. It is thus clear from the record that CueBid knew of the establishment of the BPA with Titan no later than February 18. Any challenge to the establishment of the BPA was timely only if filed within 10 days of February 18, or February 28. Because CueBid’s challenges were filed on March 3, we agree with the agency that these allegations are also untimely, and we dismiss them.
Allegation that Requirement Being Satisfied Was Out of Scope of BPA
CueBid asserts that, in issuing call order No. W9115125F0010 to Titan, the Army unreasonably used a BPA intended for use by the XVIII Airborne Corps to support a requirement of the III Armored Corps, thus exceeding the scope of the procurement vehicle. Protest at 15. The Army explains, however, that the agency amended the BPAs to add III Armored Corps as an additional location. Reply to Objection at 7, citing Req. for Dismissal, exh. 5, BPA amend. P0001 at 5 (noting that “[t]he purpose of this modification is to add III Corps locations and include a list of authorized users”). The protester does not dispute these facts. See Resp. to Agency Reply.
Our Bid Protest Regulations, 4 C.F.R. § 21.1(c)(4) and (f), require that a protest include a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient. These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency action. As noted above, the Army amended the BPA to specifically include support for the III Armored Corps. As such, the protester relies upon an incorrect fact (the BPA does not authorize support for the III Armored Corps) to support its allegation. Because the protester’s allegation contains a material factual error, we dismiss this allegation for failure to state a valid basis of protest.
Allegations Regarding the Issuance of the Call Order to Titan
CueBid asserts other various violations of procurement law and regulation regarding the issuance of the call order No. W9115125F0010 for sanitation work to Titan, including, for instance, that the agency failed to perform a proper price reasonableness analysis. Protest at 11. As discussed below, we dismiss the allegation on the basis the protester is not an interested party to bring it.
Our Bid Protest Regulations, 4 C.F.R. §§ 21.0(a)(1), 21.1(a), provide that only an “interested party,” that is, an actual offeror or quoter whose direct economic interest would be affected by the award of a contract or the failure to award a contract, may file a protest. Where a firm would not be in line for the award of a contract (or in this instance, the establishment of a BPA or the issuance of task orders) even if its protest were sustained, the firm is not an interested party within the meaning of our Bid Protest Regulations. Foxhole Tech., LLC, B-420718, July 29, 2022, 2022 CPD ¶ 203 at 3.
Here, the agency limited the competition for the call order to holders of the BPA. See Reply to Objection, exh. 1, decl. of Contracting Officer at 2 (noting that the agency “sent RFQs to holders of BPA Nos. W91248-23-A-2001 P1, -2002 P1, and -2003 P1 for the sanitation and disinfection of the washed equipment”). CueBid is not one of the three firms that hold the requisite BPA and was therefore not included in the competition for the BPA call order that the Army issued to Titan. As a non-participant, CueBid had no direct economic interest that was affected by the evaluation error CueBid alleges because it would not have been in line for award even if its allegation was sustained. Consequently, we dismiss its argument that the agency failed to perform a proper price reasonableness analysis before issuing the call order to Titan on the basis that CueBid is not an interested party to bring that allegation.[7] 4 C.F.R. §§ 21.0(a)(1), 21.1(a).
Challenges to the Army’s Conduct Regarding the CICA and OHA Stays
CueBid contends that the agency overrode the CICA stay of performance of the RFQ without following proper protocol and that issuance of the call order to Titan violated the OHA stay. Protest at 5, 7 (“Contract Award in Violation of SBA OHA Stay Order”). The protester argues that “[t]he mandatory stay mechanism is intended to prevent contract execution that would moot a protest or undermine fair competition.” Protest at 8.
Under certain circumstances, a protest to this Office triggers what is known as a CICA stay of performance. 31 U.S.C. § 3553(c)(1). Unless the head of a procuring activity waives compliance with the required stay, the agency may not award a contract in a procurement after the federal agency “has received notice of a protest with respect to such procurement from the Comptroller General and while the protest is pending.” Id. Section 3553(c)(1) only prohibits the agency from awarding a contract resulting from the protested procurement. AeroSage LLC, B-410648.2, B-410648.3, Mar. 20, 2015, 2015 CPD ¶ 111 at 3. That regulation does not prohibit the agency from satisfying the same or related requirements included in the procurement through other means. Id.
It is well settled that an agency’s failure to comply with the statutory CICA stay requirement is not a valid basis of protest to our Office. 4 C.F.R. § 21.6 (“GAO does not administer the requirements to withhold award or suspend contract performance.”); AeroSage, LLC, B-418292 et al., Feb. 27, 2020, 2020 CPD ¶ 77 at 11 (an agency’s alleged failure to comply with the requirement to withhold award fails to state a valid basis of protest); AeroSage, LLC; SageCare, Inc., B-415267.13, B‑415267.14, Mar. 19, 2018, 2018 CPD ¶ 114 at 5 (same). The allegation that the Army improperly circumvented the CICA stay of performance of the RFQ requirement, while it has no support in the record, is not for GAO’s consideration, and we dismiss it.[8] 4 C.F.R. § 21.6; AeroSage, LLC, supra.
CueBid also alleges the Army’s issuance of the BPA call order to Titan “disregard[ed] the OHA [s]tay.” Protest at 7. An agency’s failure to suspend performance is a procedural defect that does not affect the validity of an award and therefore does not provide a basis to sustain a protest. Mission Analytics, LLC, B-422841.3, Dec. 11, 2024, 2024, CPD ¶ 305 at 5; Aurora Storage Prods., B-415628, Dec. 1, 2017, 2017 CPD ¶ 371 at 4 n.3. We therefore dismiss this allegation for failure to state a valid basis of protest. 4 C.F.R. § 21.1(c)(4), (f).
The protest is dismissed.
Edda Emmanuelli Perez
General Counsel
[1] The parties briefed at length differing views on whether the RFQ included only washing services or both washing and sanitizing services. Compare Protest at 9 (“[t]he initial solicitation required washing and sanitizing 276 pieces of equipment”) with Req. for Dismissal at 2 (stating that “request for quotations no. W91151-25-Q-0005” was for “operational washdown services”). We need not consider this issue because it has no relevance to our resolution of the protest.
[2] On June 16, 2023, the Army established three BPAs (Nos. W91248-23-A-2001, -2002, and -2003) with economically disadvantaged women-owned businesses, including Titan. Reply to Objection at 7. BPA No. W91248-23-A-2001 was issued to Titan.
[3] CueBid requested reconsideration of that dismissal, asserting that the agency had only stated its intent to cancel the RFQ, but had not yet canceled it. See CueBid BioDefense--Recon., B-423161.6, Dec. 30, 2024 (unpublished decision) at 1. The protester also asserted that the individual who signed the memorandum stating that the Army would cancel the solicitation lacked the authority to cancel the RFQ. See id. at 2. GAO found no legal or factual error that would warrant reconsideration of our decision dismissing the protest, and we denied the protester’s request that we reconsider that decision. Id. at 3.
[4] Over the course of record development, CueBid produced approximately 120 exhibits to support a myriad of allegations concerning improper agency conduct. While we do not address each allegation, we have considered every protest ground and find none provides a basis on which to sustain the protest.
[5] SAM.gov (System for Award Management) is the current governmentwide point of entry and serves as the single point where government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public. Federal Acquisition Regulation (FAR) 2.101; Correct Sols., LLC, B-421533, May 31, 2023, 2023 CPD ¶ 133 at 2 n.1.
[6] We also note that the Army’s rationale for canceling the RFQ in lieu of amending it was that there was insufficient time to amend the RFQ and then wash, sanitize, inspect, transport, and load for shipment 276 pieces of equipment in time for the planned deployment. Reply to Objection at 9-10. We have previously found a similar rationale for canceling a solicitation reasonable. Henry's Aerial Serv., Inc.; Evergreen Flying Servs., Inc., B-414238.7, B-414238.9, Aug. 10, 2017, 2017 CPD ¶ 257 at 8 (denying protest of an agency’s cancellation of a solicitation in response to a prior protest where the agency had insufficient time to conduct a reevaluation of proposals before its time-sensitive requirements changed and where another procurement vehicle was available to fulfill its needs).
[7] The protester complains of a lack of notice in establishing the underlying BPAs, asserting that an “invitation only vehicle” circumvents the full and open competition requirement of CICA. Protest at 16. Again, challenges to the establishment of the BPAs are untimely.
[8] Moreover, as noted above, an agency may not award a contract in a procurement after the federal agency “has received notice of a protest with respect to such procurement from the Comptroller General and while the protest is pending.” 31 U.S.C. § 3553(c)(1). The stay, absent an agreement among the parties, has no relevance to the protested procurement once the protest is no longer pending, and it is not relevant to any other procurement. See id.