B-169973, AUG. 10, 1970

B-169973: Aug 10, 1970

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AWARD BY PRIME CONTRACTOR TO LOW RESPONSIVE AND RESPONSIBLE OFFEROR UNDER UNRESTRICTED PROCUREMENT IS NOT SUBJECT TO QUESTION IN ABSENCE OF ANY SHOWING THAT PROTESTANT. WAS NOT CONSIDERED FAIRLY. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 4. TEN FIRMS WERE SOLICITED ON AN UNRESTRICTED BASIS AND AWARD WAS MADE TO THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR. REQUIRES THE CONTRACTOR "TO ESTABLISH AND CONDUCT A SMALL BUSINESS SUBCONTRACTING PROGRAM WHICH WILL ENABLE SMALL BUSINESS CONCERNS TO BE CONSIDERED FAIRLY AS SUBCONTRACTORS AND SUPPLIERS UNDER THIS CONTRACT.". THERE IS AN AFFIRMATIVE OBLIGATION TO ACCOMPLISH THE MAXIMUM AMOUNT OF SMALL BUSINESS SUBCONTRACTING WHICH IS CONSISTENT WITH THE EFFICIENT PERFORMANCE OF THE CONTRACT.

B-169973, AUG. 10, 1970

BID PROTEST -- SMALL BUSINESS -- SUBCONTRACTING DENIAL OF PROTEST AGAINST AWARD BY SPERRY-RAND CORP., PRIME CONTRACTOR FOR LOUISIANA ARMY AMMUNITION PLANT, SHREVEPORT, LOUISIANA, ON ACCOUNT OF SUBCONTRACTING TO LARGE BUSINESS FIRM. AWARD BY PRIME CONTRACTOR TO LOW RESPONSIVE AND RESPONSIBLE OFFEROR UNDER UNRESTRICTED PROCUREMENT IS NOT SUBJECT TO QUESTION IN ABSENCE OF ANY SHOWING THAT PROTESTANT, SMALL BUSINESS FIRM, WAS NOT CONSIDERED FAIRLY.

TO LAND AIR, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 4, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR QUOTATIONS (RFQ) NO. SPERRY-RAND P4587, ISSUED BY THE SPERRY-RAND CORPORATION AS THE PRIME OPERATING CONTRACTOR FOR THE LOUISIANA ARMY AMMUNITION PLANT, SHREVEPORT, LOUISIANA.

THE SOLICITATION REQUESTED QUOTATIONS ON A UNIT PRICE BASIS FOR 550,000 PLUG, LIFTING PER DRAWING 10520074 REV. E AND EOP A-57124-2 DATED SEPTEMBER 1969. TEN FIRMS WERE SOLICITED ON AN UNRESTRICTED BASIS AND AWARD WAS MADE TO THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR.

YOUR PROTEST APPEARS TO BE PREMISED ON THE BASIS THAT SPERRY-RAND, IN SUBCONTRACTING TO A LARGE BUSINESS, HAS ACTED CONTRARY TO SECTION 1 707.3 OF THE ARMED SERVICES PROCUREMENT REGULATION.

THE CLAUSE, IN GENERAL, REQUIRES THE CONTRACTOR "TO ESTABLISH AND CONDUCT A SMALL BUSINESS SUBCONTRACTING PROGRAM WHICH WILL ENABLE SMALL BUSINESS CONCERNS TO BE CONSIDERED FAIRLY AS SUBCONTRACTORS AND SUPPLIERS UNDER THIS CONTRACT." AS SUCH, THERE IS AN AFFIRMATIVE OBLIGATION TO ACCOMPLISH THE MAXIMUM AMOUNT OF SMALL BUSINESS SUBCONTRACTING WHICH IS CONSISTENT WITH THE EFFICIENT PERFORMANCE OF THE CONTRACT. IN THIS CONNECTION, SUBPARAGRAPH (A)(3) OF THE REQUIRED CLAUSE PROVIDES THAT THE CONTRACTOR SHALL ASSURE THAT SMALL BUSINESS CONCERNS WILL HAVE AN EQUITABLE OPPORTUNITY TO COMPETE FOR SUBCONTRACTS, PARTICULARLY BY ARRANGING SOLICITATIONS, TIME FOR THE PREPARATION OF BIDS, QUANTITIES, SPECIFICATIONS, AND DELIVERY SCHEDULES SO AS TO FACILITATE THE PARTICIPATION OF SMALL BUSINESS CONCERNS.

IT IS NOT SPECIFICALLY ALLEGED THAT YOUR FIRM WAS NOT "CONSIDERED FAIRLY" AS A POSSIBLE SUBCONTRACT FOR THIS PROCUREMENT. WE FIND IT DIFFICULT TO SEE HOW YOUR FIRM HAS BEEN DEPRIVED OF THE FAIR CONSIDERATION REQUIRED BY THE CLAUSE, SINCE AWARD WAS MADE TO THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR. THE FACT THAT THESE ITEMS HAVE BEEN SOLICITED IN THE PAST ON A RESTRICTED BASIS AS A SMALL BUSINESS SET-ASIDE DOES NOT PRECLUDE SPERRY- RAND FROM SOLICITING THIS PROCUREMENT ON A NONRESTRICTED BASIS. THIS IS A MATTER FOR ADMINISTRATIVE DETERMINATION BY THE CONTRACTOR.

IN CONCLUSION, WE THINK IT IS CLEAR THAT ALL FIRMS INTERESTED IN THE PROCUREMENT HAD EQUAL OPPORTUNITY TO SUBMIT COMPETITIVE OFFERS AND THAT SPERRY-RAND MADE AWARD TO THE OFFEROR WHICH OFFERED THE LOWEST PRICE FOR FURNISHING EQUIPMENT MEETING THE SPECIFICATIONS. CONSIDERING THAT PROCUREMENTS SUCH AS HERE INVOLVED ARE NOT SUBJECT TO THE USUAL RIGID RULES APPLICABLE TO DIRECT PROCUREMENTS BY THE GOVERNMENT UNDER ADVERTISED PROCEDURES, WE FIND NO BASIS TO OBJECT TO THE AWARD AS MADE.

ACCORDINGLY, YOUR PROTEST IS DENIED.