B-150048, DEC. 12, 1962

B-150048: Dec 12, 1962

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YOU OBJECT TO THE INVITATION FOR BIDS CITING YOUR COMPANY'S PRODUCT AS A CRITERION FOR BIDS WHEN THE COMPANY IS DENIED A CHANCE TO BID (APPARENTLY BECAUSE IT DOES QUALIFY AS SMALL BUSINESS). ADVICE FROM THE AIR FORCE IS THAT AFPI 1-706.5 (A) (1) WAS AMENDED BY AIR FORCE PROCUREMENT CIRCULAR NO. 45 AND THAT THE EFFECT OF THE AMENDMENT WAS TO DELETE THE REQUIREMENT THAT THERE BE TWO OR MORE SMALL BUSINESS CONCERNS HAVING PREVIOUSLY SUBMITTED RESPONSIVE BIDS ON THE ITEM AND TO BRING THE AFPI IN LINE WITH ASPR 1-706.5 (A) WHICH PROVIDES THAT A TOTAL SET-ASIDE MAY BE MADE FOR SMALL BUSINESS WHERE THERE IS A REASONABLE EXPECTATION THAT BIDS OR PROPOSALS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES AND WHICH FURTHER PROVIDES THAT ALTHOUGH PAST PROCUREMENT HISTORY OF THE ITEM IS IMPORTANT.

B-150048, DEC. 12, 1962

TO MR. G. R. BILLARD, FIELD MANAGER:

IN LETTER OF OCTOBER 5, 1962, YOU PROTEST THE TOTAL SET-ASIDE FOR SMALL BUSINESS OF CERTAIN SPLICING KITS REQUIRED IN INVITATION FOR BIDS 30-635- 63-140 TO BE EQUAL TO MINNESOTA MINING AND MANUFACTURING COMPANY NO. 82A.

YOU PROTEST BECAUSE YOU SAY THAT UNDER AFPI 1-706.5 (A) (1) THE TOTAL SET -ASIDE MUST BE BASED UPON A RECORD OF TWO OR MORE SMALL BUSINESS CONCERNS HAVING PREVIOUSLY SUBMITTED BIDS ON THE SUBJECT ITEM AND THAT BASED ON PREVIOUS EXPERIENCE THE PROCURING ACTIVITY CAN ONLY EXPECT ONE BIDDER TO RESPOND. FURTHER, YOU OBJECT TO THE INVITATION FOR BIDS CITING YOUR COMPANY'S PRODUCT AS A CRITERION FOR BIDS WHEN THE COMPANY IS DENIED A CHANCE TO BID (APPARENTLY BECAUSE IT DOES QUALIFY AS SMALL BUSINESS).

AS TO THE FIRST ELEMENT OF YOUR PROTEST, ADVICE FROM THE AIR FORCE IS THAT AFPI 1-706.5 (A) (1) WAS AMENDED BY AIR FORCE PROCUREMENT CIRCULAR NO. 45 AND THAT THE EFFECT OF THE AMENDMENT WAS TO DELETE THE REQUIREMENT THAT THERE BE TWO OR MORE SMALL BUSINESS CONCERNS HAVING PREVIOUSLY SUBMITTED RESPONSIVE BIDS ON THE ITEM AND TO BRING THE AFPI IN LINE WITH ASPR 1-706.5 (A) WHICH PROVIDES THAT A TOTAL SET-ASIDE MAY BE MADE FOR SMALL BUSINESS WHERE THERE IS A REASONABLE EXPECTATION THAT BIDS OR PROPOSALS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES AND WHICH FURTHER PROVIDES THAT ALTHOUGH PAST PROCUREMENT HISTORY OF THE ITEM IS IMPORTANT, IT IS NOT THE ONLY CONTROLLING FACTOR WHICH SHOULD BE CONSIDERED IN DETERMINING WHETHER SUCH A REASONABLE EXPECTATION EXISTS. WE ARE FURTHER ADVISED THAT THE TOTAL SMALL BUSINESS SET-ASIDE OF THE SUBJECT PROCUREMENT WAS THE RESULT OF A JOINT DETERMINATION BY THE CONTRACTING OFFICER AND A SMALL BUSINESS ADMINISTRATION REPRESENTATIVE. THIS DETERMINATION IS REPORTED TO HAVE BEEN BASED UPON A REASONABLE EXPECTATION THAT A SUFFICIENT NUMBER OF BIDS WOULD BE RECEIVED FROM SMALL BUSINESS CONCERNS SO THAT AN AWARD COULD BE MADE AT A FAIR AND REASONABLE PRICE. IN THIS CONNECTION, IT IS REPORTED THAT SEVERAL SEALED MAILED ENVELOPES HAVE BEEN RECEIVED BUT THAT WHETHER THEY CONTAIN RESPONSIVE BIDS CANNOT BE ASCERTAINED UNTIL BID OPENING.

WITH RESPECT TO THE OBJECTION TO THE INCLUSION OF YOUR COMPANY'S PRODUCT IN THE ITEM DESCRIPTION IN THE INVITATION FOR BIDS, THE AIR FORCE HAS ADVISED THAT THE UTILIZATION OF THE DESCRIPTION OF SUCH A WELL-KNOWN PRODUCT IS JUSTIFIED IN THAT IT ENABLES SMALL BUSINESS CONCERNS TO MORE FULLY UNDERSTAND WHAT THE GOVERNMENT SEEKS TO PROCURE. ALSO, INFORMATION HAS BEEN FURNISHED THAT THE INVITATION HAS BEEN AMENDED TO INCLUDE A SPLICING KIT MANUFACTURED BY A SMALL BUSINESS CONCERN, ROBERTSON ELECTRIC COMPANY, THAT HAS BEEN DETERMINED TO BE EQUAL TO THE KIT SOLD BY YOUR COMPANY AND THAT THE PROCUREMENT WILL PROCEED TO THE OPENING OF BIDS ON THE AMENDED BASIS.

THE DETERMINATION TO SET ASIDE A PROCUREMENT FOR SMALL BUSINESS IS WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION. THIS AUTHORITY IS VERY BROAD AND AN ADMINISTRATIVE DETERMINATION MADE PURSUANT TO SUCH AUTHORITY IS NOT ORDINARILY REVIEWED BY OUR OFFICE. THEREFORE, IN THE CIRCUMSTANCES OF THIS CASE WE SEE NO BASIS FOR OBJECTING TO THE ADMINISTRATIVE DETERMINATION TO SET ASIDE THE PROCUREMENT FOR SMALL BUSINESS. FURTHER, AS THE INCLUSION OF YOUR COMPANY'S PRODUCT IN THE ITEM DESCRIPTION IN THE INVITATION APPEARS TO BE CONSIDERED NECESSARY TO A GENERAL UNDERSTANDING OF THE TYPE OF ARTICLE TO BE PROCURED, THERE IS NO LEGAL OBJECTION TO THE REFERENCE THERETO IN THE INVITATION.

ACCORDINGLY, IN THE CIRCUMSTANCES WE ARE CONSTRAINED TO DENY YOUR PROTEST.