B-154393, AUG. 18, 1964

B-154393: Aug 18, 1964

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PRESIDENT REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. PROTESTING THAT THERE ARE PROCEDURAL DEFECTS IN THE PROCUREMENT COVERED BY POST OFFICE DEPARTMENT INVITATION 297. IT APPEARS THAT YOU BELIEVE THERE MAY HAVE BEEN A FAILURE TO FOLLOW FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.305 THROUGH 1- 1.305-3. YOU DO NOT INDICATE IN WHAT RESPECT THESE REGULATIONS MAY HAVE BEEN BREACHED. THESE REGULATIONS REQUIRE THAT A FEDERAL SPECIFICATION BE UTILIZED UNLESS THE USING AGENCY DETERMINES THAT IT IS NOT ADEQUATE FOR ITS USE. EACH AGENCY MAKING SUCH DEVIATIONS IS REQUIRED TO DESIGNATE AN OFFICIAL HAVING SUBSTANTIAL PROCUREMENT RESPONSIBILITY TO ASSUME THE RESPONSIBILITY OF SEEING THAT FEDERAL SPECIFICATIONS ARE USED AND THAT JUSTIFICATIONS FOR DEVIATIONS ARE SUBJECT TO COMPETENT REVIEW BEFORE AUTHORIZATION.

B-154393, AUG. 18, 1964

TO MR. R. L. COOLEY, PRESIDENT

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1964, PROTESTING THAT THERE ARE PROCEDURAL DEFECTS IN THE PROCUREMENT COVERED BY POST OFFICE DEPARTMENT INVITATION 297, A TOTAL SMALL BUSINESS SET-ASIDE OF WRINGERS AND BUCKETS.

FROM YOUR LETTER, IT APPEARS THAT YOU BELIEVE THERE MAY HAVE BEEN A FAILURE TO FOLLOW FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.305 THROUGH 1- 1.305-3, PERTAINING TO SPECIFICATIONS, AND 1-1.706-3 AND 1 1.706-5, PERTAINING TO SMALL BUSINESS SET-ASIDES. HOWEVER, YOU DO NOT INDICATE IN WHAT RESPECT THESE REGULATIONS MAY HAVE BEEN BREACHED.

THE FIRST SET REGULATIONS CITED BY YOU DEFINES SPECIFICATIONS (FPR 1- 1.305), REQUIRES THE USE OF FEDERAL SPECIFICATIONS (FPR 1-1.305-1), AND PROVIDES FOR EXCEPTIONS (FPR 1-1.305-2) AND DEVIATIONS (FPR 1 1.305-3) TO THE MANDATORY USE OF FEDERAL SPECIFICATIONS. ESSENTIALLY, THESE REGULATIONS REQUIRE THAT A FEDERAL SPECIFICATION BE UTILIZED UNLESS THE USING AGENCY DETERMINES THAT IT IS NOT ADEQUATE FOR ITS USE. UNDER FPR 1- 1.305-3, EACH AGENCY MAKING SUCH DEVIATIONS IS REQUIRED TO DESIGNATE AN OFFICIAL HAVING SUBSTANTIAL PROCUREMENT RESPONSIBILITY TO ASSUME THE RESPONSIBILITY OF SEEING THAT FEDERAL SPECIFICATIONS ARE USED AND THAT JUSTIFICATIONS FOR DEVIATIONS ARE SUBJECT TO COMPETENT REVIEW BEFORE AUTHORIZATION. WHILE THE POST OFFICE HAS NOT SPECIFICALLY IMPLEMENTED THIS REGULATION, OUR OFFICE HAS ASCERTAINED THAT THE DEVIATIONS TO THE FEDERAL SPECIFICATION WERE REVIEWED BY RESPONSIBLE PEOPLE IN THE MAINTENANCE AND PROCUREMENT DIVISIONS. MOREOVER, THE ACTING DIRECTOR OF THE PROCUREMENT DIVISION HAS INDICATED THAT HE HAS REVIEWED THE DEVIATIONS TO THE FEDERAL SPECIFICATION AND THE REASONS FOR IT AND IS SATISIFED THAT IT WAS JUSTIFIED. IN ANY EVENT, THE FACT THAT WAIVER OF A SPECIFICATION DOES NOT CONFORM TO PRESCRIBED PROCEDURE DOES NOT AFFECT THE VALIDITY OF A PROCUREMENT. 43 COMP. GEN. 77, 83.

THE SECOND SET OF REGULATIONS CITED BY YOU SETS FORTH THE CONDITIONS UPON WHICH A PROCUREMENT IS TO BE TOTALLY SET ASIDE FOR SMALL BUSINESS (FPR 1- 1.706-5) AND THE CONDITIONS UNDER WHICH SET ASIDES MAY BE WITHDRAWN (FPR 1 -1.706-3). FPR 1-1.706-5 PROVIDES THAT THE ENTIRE AMOUNT OF AN INDIVIDUAL PROCUREMENT OR CLASS OF PROCUREMENTS SHALL BE SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION WHERE THERE IS A REASONABLE EXPECTATION THAT BIDS OR PROPOSALS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES. IT IS OUR UNDERSTANDING FROM INFORMATION FURNISHED BY THE POST OFFICE DEPARTMENT THAT BESIDES GEERPRES WRINGER, INC., THE ONLY SMALL BUSINESS BIDDER THAT RESPONDED TO THE INVITATION FOR BIDS, ATLANTIC IS ANOTHER COMPANY THAT MANUFACTURES THE TYPE OF BUCKET INVOLVED, THAT THERE IS NOTHING PROPRIETARY ABOUT THE BUCKET WHICH WOULD PROHIBIT ANY MANUFACTURER OF BUCKETS FROM PRODUCING THE TYPE OF BUCKET INVOLVED, AND THAT ON PREVIOUS INVITATIONS FOR BIDS THERE HAS BEEN COMPETITION FROM SMALL BUSINESS ON THE TYPE OF EQUIPMENT COVERED BY THIS INVITATION. THEREFORE, THERE APPEARS TO HAVE BEEN A BASIS FOR THE DETERMINATION TO SET ASIDE THE PROCUREMENT FOR SMALL BUSINESS.

FPR 1-1.706-3 PROVIDES FOR THE REVIEW OF SET-ASIDE PROCUREMENTS BEFORE AWARD TO DETERMINE WHETHER THE PROCUREMENT FROM SMALL BUSINESS WOULD BE DETRIMENTAL TO THE PUBLIC INTEREST AND FOR WITHDRAWAL OF THE SET-ASIDE WHERE SUCH A DETERMINATION IS MADE. THE POST OFFICE DEPARTMENT HAS REVIEWED THE PROCUREMENT AND DOES NOT PROPOSE TO WITHDRAW IT.

IN B-150048, DECEMBER 12, 1962, IT WAS STATED:

"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. * * *"

ACCORDINGLY, IN THE CIRCUMSTANCES OF THIS CASE, YOUR PROTEST MUST BE DENIED. HOWEVER, WE ARE SUGGESTING TO THE POSTMASTER GENERAL THAT THE POST OFFICE DEPARTMENT IMPLEMENT FPR 1-1.305-3 WITH PROCEDURES AS REQUIRED BY THAT SECTION.