B-165510, FEB. 10, 1969

B-165510, FEB. 10, 1969

TO FISCHER, WOOD, BURNEY AND NESBITT:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1969, REQUESTING RECONSIDERATION OF OUR DECISION B-165510 DATED DECEMBER 16, 1968, CONCERNING A PROTEST BY LOYD W. RICHARDSON CONSTRUCTION CORPORATION OF THE WITHDRAWAL OF INVITATION FOR BIDS DACW64-69-B-0026 FROM "SMALL BUSINESS SET-ASIDE.'

AFTER A THOROUGH REVIEW OF THE FILE IN THAT CASE AND AFTER EXAMINATION OF THE EVIDENCE YOU SUBMITTED WITH YOUR REQUEST, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER IN MAKING HIS DECISION TO WITHDRAW THE INVITATION FROM SMALL BUSINESS SET-ASIDE ABUSED THE DISCRETION PERMITTED HIM BY LAW.

WE RECOGNIZE THAT IT MAY HAVE BEEN POSSIBLE FOR LOYD W. RICHARDSON CONSTRUCTION CORPORATION TO HAVE PERFORMED THE CONTRACT IN QUESTION. IS ALSO POSSIBLE THAT THERE MIGHT HAVE BEEN SUFFICIENT COMPETITION TO ALLOW THE INVITATION TO REMAIN "SET-ASIDE.' HOWEVER, AT THE TIME OF THE CONTRACTING OFFICER'S DETERMINATION TO WITHDRAW THE SET-ASIDE, IT APPEARED TO HIM THAT ADEQUATE COMPETITION WOULD NOT BE GENERATED UNDER SET-ASIDE PROCEDURES. WE CANNOT NOW WITH THE AID OF HINDSIGHT REVERSE A DETERMINATION WHICH, IN OUR OPINION, WAS REASONABLE AND MADE IN GOOD FAITH AT THAT TIME.

AS STATED IN OUR DECISION,"WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF THE DISCRETION PERMITTED HIM.' A CLEAR SHOWING OF ABUSE OF DISCRETION WAS NOT DEMONSTRATED BY THE FACTS OF RECORDS BEFORE US. ACCORDINGLY, WE FIND NO BASIS TO DISTURB OUR PREVIOUS DECISION IN THIS MATTER.