B-155896, MAR. 16, 1965

B-155896, MAR. 16, 1965

TO BLACKSTONE ULTRASONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 6, 1965, PROTESTING THE INCLUSION OF FEDERAL AVIATION AGENCY INVITATION NO. CEOO 5- 77 OF THE TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS.

THE INVITATION WAS ISSUED ON DECEMBER 14, 1964, BY THE FEDERAL AVIATION AGENCY, CENTRAL REGION, KANSAS CITY, MISSOURI, SOLICITING BIDS FOR FURNISHING FROM 2 TO 12 ULTRASONIC CLEANERS AND PROVIDED AMONG OTHERS, THAT "THIS PROCUREMENT IS SET-ASIDE FOR SMALL BUSINESS CONCERNS, ONLY.' YOU CONTEND THAT RESTRICTION OF THE PROCUREMENT TO SMALL BUSINESS FIRMS IS A DISCRIMINATION AGAINST YOU AS A LARGE BUSINESS FIRM.

THE FEDERAL AVIATION AGENCY REPORTS THAT THROUGH ITS CONTRACTING PERSONNEL THE AGENCY ADHERES TO THE INTENT OF THE CONGRESS OF THE UNITED STATES AS EVIDENCED BY THE SMALL BUSINESS ACT BY AWARDING TO SMALL BUSINESS CONCERNS A FAIR PROPORTION OF ITS TOTAL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES. SINCE THE PROCUREMENT HERE AT ISSUE INVOLVED A TOTAL SET-ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION, FEDERAL PROCUREMENT REGULATIONS 1-1.706-5, WHICH WAS PROMULGATED TO CARRY OUT THE INTENT OF THE SMALL BUSINESS ACT AND WHICH THE FEDERAL AVIATION AGENCY, AS A CIVILIAN AGENCY, IS OBLIGED TO FOLLOW, APPEARS TO BE COMPLETELY CONTROLLING. PARAGRAPH (A) OF THIS SECTION OF THE REGULATIONS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SUBJECT TO THE CONDITIONS SET FORTH IN SECS. 1-1.706-1 AND 1-1.706 2, 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. * * *"

THE FEDERAL AVIATION AGENCY REPORTS THAT AN ABSTRACT OF BIDS FOR A PREVIOUS PROCUREMENT OF ULTRASONIC CLEANERS WHICH ALSO WAS SET ASIDE FOR EXCLUSIVE PARTICIPATION OF SMALL BUSINESS CONCERNS SHOWS THAT EIGHT FIRMS RESPONDED TO THE INVITATION. THERE RESULTED AN AWARD OF CONTRACT ON JUNE 19, 1964, TO THE ELECTRO-SONIC SYSTEMS, INC., FOR 16 UNITS OF THE ULTRASONIC CLEANERS AND SATISFACTORY DELIVERY HAS BEEN MADE UNDER THAT PROCUREMENT AND THE CONTRACT COMPLETED. MORE SIGNIFICANT PERHAPS IS THE FACT THAT EIGHT FIRMS ALSO SUBMITTED BIDS IN RESPONSE TO THE SUBJECT INVITATION NO. CEOO-5-77. ELECTRO-SONIC SYSTEMS, INC., ALSO SUBMITTED THE LOW BID IN RESPONSE TO THIS INVITATION AND YOU DO NOT ALLEGE, NOR IS THERE ANY INDICATION, THAT THE BID PRICES SUBMITTED BY THE CORPORATION ARE EXCESSIVE. THUS, IN THE LIGHT OF THE BID RESPONSE TO INVITATION NO. CEOO- 5-77 AND TO THE ABOVE-REFERRED-TO PREVIOUS PROCUREMENT, IT IS CLEARLY ESTABLISHED THAT THERE WERE A SUFFICIENT NUMBER OF SMALL BUSINESS CONCERNS WHICH REASONABLY COULD HAVE BEEN EXPECTED TO RESPOND TO THE INVITATION AS WOULD ASSURE AN AWARD OF THE CONTRACT AT A REASONABLE PRICE.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE FORM IN WHICH INVITATION NO. CEOO-5-77 WAS ISSUED UNDER THE CIRCUMSTANCES REPORTED AND, THEREFORE, YOUR PROTEST IS DENIED.