B-218127, FEB 14, 1985, 85-1 CPD 202
Highlights
THE FACT THAT ONLY ONE ACCEPTABLE OFFER WAS RECEIVED IN RESPONSE TO A SMALL BUSINESS SET-ASIDE SOLICITATION DOES NOT AFFECT THE PROPRIETY OF THE SET-ASIDE. CONTENTION AFTER BID OPENING THAT SOLICITATION SHOULD NOT HAVE BEEN SET ASIDE FOR SMALL BUSINESS BECAUSE IT ALLEGEDLY VIOLATES THE PROVISION IN 15 U.S.C. SEC. 644(A) THAT A "FAIR PROPORTION" OF TOTAL GOVERNMENT PURCHASES AND CONTRACTS BE PLACED WITH SMALL BUSINESS CONCERNS IS UNTIMELY. DLA120-85-B-0154 ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER BECAUSE THE SOLICITATION IS A SMALL BUSINESS SET-ASIDE AND ONLY ONE OFFER WAS RECEIVED. ROBINS' CONTENTION THAT ONLY ONE OFFER WAS RECEIVED IS NOT A VALID BASIS FOR PROTEST. THE FACT THAT ONLY ONE ACCEPTABLE OFFER WAS RECEIVED DOES NOT AFFECT THE PROPRIETY OF THE DETERMINATION TO SET THE PROCUREMENT ASIDE FOR SMALL BUSINESS PARTICIPATION.
B-218127, FEB 14, 1985, 85-1 CPD 202
CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SET-ASIDES - PROPRIETY DIGEST: 1. THE FACT THAT ONLY ONE ACCEPTABLE OFFER WAS RECEIVED IN RESPONSE TO A SMALL BUSINESS SET-ASIDE SOLICITATION DOES NOT AFFECT THE PROPRIETY OF THE SET-ASIDE. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 2. CONTENTION AFTER BID OPENING THAT SOLICITATION SHOULD NOT HAVE BEEN SET ASIDE FOR SMALL BUSINESS BECAUSE IT ALLEGEDLY VIOLATES THE PROVISION IN 15 U.S.C. SEC. 644(A) THAT A "FAIR PROPORTION" OF TOTAL GOVERNMENT PURCHASES AND CONTRACTS BE PLACED WITH SMALL BUSINESS CONCERNS IS UNTIMELY.
A. H. ROBINS COMPANY:
A. H. ROBINS COMPANY (ROBINS) PROTESTS THE AWARD OF A CONTRACT UNDER SOLICITATION NO. DLA120-85-B-0154 ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER BECAUSE THE SOLICITATION IS A SMALL BUSINESS SET-ASIDE AND ONLY ONE OFFER WAS RECEIVED. ROBINS FURTHER CONTENDS THAT THE POLICY OF SETTING ASIDE FOR SMALL BUSINESS ALL PROCUREMENTS FOR ANTICHAP LIPSTICK VIOLATES THE PROVISION IN 15 U.S.C. SEC. 644(A) (1982) THAT A "FAIR PROPORTION" OF THE TOTAL GOVERNMENT PURCHASES AND CONTRACTS BE PLACED WITH SMALL BUSINESS CONCERNS.
WE SUMMARILY DISMISS THE PROTEST UNDER SECTION 21.3(F) OF OUR BID PROTEST REGULATIONS, 49 FED.REG. 49,417, 49,421 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.3(F)).
FIRST, ROBINS' CONTENTION THAT ONLY ONE OFFER WAS RECEIVED IS NOT A VALID BASIS FOR PROTEST. THE FACT THAT ONLY ONE ACCEPTABLE OFFER WAS RECEIVED DOES NOT AFFECT THE PROPRIETY OF THE DETERMINATION TO SET THE PROCUREMENT ASIDE FOR SMALL BUSINESS PARTICIPATION. SEE LING/L.A.B., SUBSIDIARY OF MECHANICAL TECHNOLOGY, INC., B-207414, OCT. 15, 1982, 82-2 CPD PARA. 341.
SECOND, ROBINS' CONTENTION THAT THE PROCUREMENT SHOULD NOT HAVE BEEN SET ASIDE BECAUSE IT VIOLATES THE "FAIR PROPORTION" POLICY IS UNTIMELY. PROTESTS BASED ON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. BID PROTEST REGULATIONS, SEC. 21.2(A)(1), 49 FED.REG. 49,417, 49,420 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.2(A) (1)).
IN ANY EVENT, WE NOTE THAT WE HAVE ADDRESSED AND DENIED ROBINS' "FAIR PROPORTION" CONTENTION BEFORE. IN A. H. ROBINS COMPANY, INC., B-215894, NOV. 15, 1984, 84-2 CPD PARA. 536, WE HELD THAT THE "FAIR PROPORTION" REQUIREMENT REFERS TO A PROPORTION OF TOTAL GOVERNMENT CONTRACTS FOR ALL GOODS AND SERVICES AND THE MERE FACT THAT SMALL BUSINESS MAY RECEIVE A SIGNIFICANT PROPORTION OF GOVERNMENT CONTRACTS IN A PARTICULAR INDUSTRY DOES NOT NECESSARILY MEAN THAT MORE THAN A FAIR PROPORTION OF THE GOVERNMENT'S TOTAL CONTRACTS HAS BEEN AWARDED TO SMALL BUSINESS.