B-168587, FEB. 17, 1970

B-168587: Feb 17, 1970

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A DETERMINATION NOT TO SET ASIDE A PROCUREMENT FOR SMALL BUSINESS IN A PARTICULAR AREA WHERE IT WAS NOT KNOWN WHETHER THERE WOULD BE SUFFICIENT SMALL BUSINESS TO INSURE REASONABLE PRICES. WHICH DETERMINATION WAS CONCURRED IN BY SMALL BUSINESS ADMINISTRATION. WILL NOT BE OBJECTED TO BY GAO IN ABSENCE OF CLEAR SHOWING OF ABUSE OF DISCRETION. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8. WHICH WAS ALSO ISSUED BY THE KANSAS CITY REGIONAL OFFICE. IT IS YOUR CONTENTION THAT SINCE THE ITEMS CALLED FOR UNDER THE SUBJECT SOLICITATIONS HAVE BEEN PROCURED UNDER SET-ASIDES IN THE PAST. THERE IS NO JUSTIFICATION FOR THE REGIONAL OFFICE'S POSITION THAT IT WAS NOT KNOWN WHETHER THERE WOULD BE SUFFICIENT SMALL BUSINESS INTEREST TO INSURE REASONABLE PRICES.

B-168587, FEB. 17, 1970

BID PROTEST--SMALL BUSINESS--SET-ASIDE PROPRIETY DECISION TO CHICAGO TRANSPORT, INC. PROTESTING GENERAL SERVICES ADMINISTRATION'S FAILURE TO SET ASIDE PROCUREMENT OF PLASTIC BAGS. A DETERMINATION NOT TO SET ASIDE A PROCUREMENT FOR SMALL BUSINESS IN A PARTICULAR AREA WHERE IT WAS NOT KNOWN WHETHER THERE WOULD BE SUFFICIENT SMALL BUSINESS TO INSURE REASONABLE PRICES, WHICH DETERMINATION WAS CONCURRED IN BY SMALL BUSINESS ADMINISTRATION, WILL NOT BE OBJECTED TO BY GAO IN ABSENCE OF CLEAR SHOWING OF ABUSE OF DISCRETION.

TO CHICAGO TRANSPARENT, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8, 1969, PROTESTING AGAINST THE FAILURE OF THE GENERAL SERVICES ADMINISTRATION (GSA), KANSAS CITY, MISSOURI, REGIONAL OFFICE, TO SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION THE PROCUREMENT OF 500 CASES OF PLASTIC BAGS UNDER SOLICITATION NO. K/W/44198/TA/DS/F. IN A LETTER DATED DECEMBER 15, 1969, YOU MAKE THE SAME PROTEST WITH RESPECT TO SOLICITATION NO. K/W/46425/TA/DS/F, WHICH WAS ALSO ISSUED BY THE KANSAS CITY REGIONAL OFFICE.

IT IS YOUR CONTENTION THAT SINCE THE ITEMS CALLED FOR UNDER THE SUBJECT SOLICITATIONS HAVE BEEN PROCURED UNDER SET-ASIDES IN THE PAST, THERE IS NO JUSTIFICATION FOR THE REGIONAL OFFICE'S POSITION THAT IT WAS NOT KNOWN WHETHER THERE WOULD BE SUFFICIENT SMALL BUSINESS INTEREST TO INSURE REASONABLE PRICES. THE PRIOR SET-ASIDES YOU REFER TO WERE IN OTHER GENERAL SERVICES ADMINISTRATION REGIONS. YOU ALSO TAKE ISSUE WITH A STATEMENT YOU ATTRIBUTE TO THE CONTRACTING OFFICER TO THE EFFECT THAT SMALL BUSINESS CONCERNS HAD NOT COMPLIED WITH THE SPECIFICATIONS IN THE PAST.

GSA ADVISES US THAT PRIOR TO ISSUANCE OF THE FIRST MENTIONED SOLICITATION, THE CONTRACTING OFFICER, WITH CONCURRENCE OF A SMALL BUSINESS ADMINISTRATION REPRESENTATIVE, MADE A DETERMINATION PURSUANT TO FEDERAL PROCUREMENT REGULATIONS 1-1. 706-1 (C) AND 1-1.706-5 (A) NOT TO SET ASIDE THE PROCUREMENT. THE JOINT DETERMINATION DATED NOVEMBER 18, 1969, STATES:

"THIS IS A FIRST FORMAL PROCUREMENT ON THE ITEM. IT IS UNKNOWN WHETHER SUFFICIENT OFFERS WILL BE RECEIVED FROM RESPONSIBLE SMALL BUSINESS FIRMS TO INSURE AN AWARD AT A FAIR AND REASONABLE PRICE." PRIOR TO OPENING OF BIDS UNDER THE FIRST SOLICITATION, THE SECOND SOLICITATION, THE SECOND SOLICITATION WAS ISSUED ON AN UNRESTRICTED BASIS FOR THE SAME REASON. ARE ADVISED THAT IN VIEW OF THE SMALL BUSINESS RESPONSE, CONSIDERATION WILL BE GIVEN TO SET-ASIDES FOR THESE ITEMS IN FUTURE PROCUREMENTS.

THE CITED REGULATIONS PROVIDE THAT SMALL BUSINESS CONCERNS SHALL RECEIVE A FAIR PROPORTION OF THE TOTAL GOVERNMENT BUSINESS WHERE IT IS DETERMINED EITHER UNILATERALLY BY THE CONTRACTING OFFICER OR JOINTLY BY THE CONTRACTING OFFICER AND AN SBA REPRESENTATIVE THAT THERE IS A REASONABLE EXPECTATION THAT BIDS WILL BE RECEIVED FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES. IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT THE DETERMINATION AS TO WHETHER SUCH A REASONABLE EXPECTATION EXISTS IS WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION AND WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF THE DISCRETION PERMITTED. 45 COMP. GEN. 228 (1965).

SINCE WE FIND NO ABUSE OF DISCRETION IN THE INSTANT CASE, THERE IS NO BASIS FOR OUR OFFICE TO OBJECT TO THE FAILURE OF THESE PROCUREMENTS TO BE SET ASIDE.